Duncan v. State

Decision Date30 June 1965
Docket Number7 Div. 614
PartiesJames Milford DUNCAN, Sr., v. STATE of Alabama.
CourtAlabama Supreme Court
Roy D. McCord, Rowan S. Bone and Hugh H. Smith, Gadsden, for appellant

Richmond M. Flowers, Atty. Gen., and W. Mark Anderson, III, Asst. Atty. Gen., for the State.

LAWSON, Justice.

Appellant, James Milford Duncan, Sr., was indicted for murder in the first degree by a grand jury of Etowah County. He was unable to employ counsel, so prior to arraignment the trial court, under the provisions of § 318, Title 15, Code 1940, appointed experienced and able criminal trial lawyers of the Etowah County Bar to represent him.

Before arraignment, Duncan, by motion to quash and by demurrer, questioned the sufficiency of the indictment on various grounds.

Upon arraignment, Duncan pleaded not guilty and not guilty by reason of insanity. The Court-appointed attorneys were present The jury found Duncan guilty of murder in the first degree and imposed the death penalty. Judgment and sentence were in accord with the verdict.

at arraignment. Hamilton v. State of Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114.

The appeal here is under the automatic appeal law applicable to cases where the death sentence is imposed. Act 249, approved June 24, 1943, General Acts 1943, p. 217, carried in the 1955 Cumulative Pocket Part to Vol. Four, 1940 Official Code, and in the 1958 Recompiled Code as Title 15, § 382(1) et seq.

The attorneys who represented Duncan in the trial court were appointed to represent him on this appeal. They have filed a brief on his behalf and argued the case at time of submission.


The motion to quash pointed out certain alleged defects in the indictment. It was overruled without error in that the proper mode of reaching defects in an indictment is by demurrer and not by motion to quash. Boulo v. State, 49 Ala. 22; Daniel v. State, 149 Ala. 44, 43 So. 22. Moreover, all of the alleged defects pointed out in the motion to quash are raised in the demurrer.

An indictment for murder in compliance with Form 79, § 259, Title 15, Code 1940, is sufficient. Noles v. State, 24 Ala. 672; Aiken v. State, 35 Ala. 399.

The indictment against Duncan is in substantial compliance with that form except that it charges, in the alternative, the means by which the offense was committed. As pertinent, the indictment charges that Duncan '* * * unlawfully and with malice aforethought killed Sandy Ann Scott by placing her in a branch or a lake whereby she was drowned. * * *'

In Rogers v. State, 117 Ala. 192, 23 So. 82, we said:

'* * * When the means by which an offense was committed [are] charged in the alternative, each alternative charge must describe the means with the same definiteness or particularity as would have been required had the charge been made separately in a separate count. * * *' (117 Ala. 195, 23 So. 83)

Counsel for appellant insist that the indictment insofar as it charges that Duncan killed Sandy Ann Scott by placing her in a 'branch' whereby she was drowned, is insufficient in that the word 'branch' could have reference to 'a limb, off-shoot, or ramification; any member or part of a body or system; a local operating division of a business house; a line of family descent; a group.' But the word 'branch' has also been defined as 'a small stream; a creek.' Danielley v. City of Princeton, 113 W.Va. 252, 167 S.E. 620; Lee v. Grupe (Tex.Civ.App.), 223 S.W.2d 548. In Dardenne Realty Co. v. Abeken (St. Louis Ct. of App., Mo.), 232 Mo.App. 945, 106 S.W.2d 966, it was said: 'That is, to constitute a branch or stream there must be something more than a mere surface drainage, swelled by freshets and melting snow, and running occasionally in hollows and ravines, which are generally dry.' It is, of course, a matter of common knowledge that the word 'branch' is frequently used to describe a small stream of water and when an indictment charges that a defendant drowned a person by placing him or her in a 'branch' it sufficiently advises the accused of the means by which the State claims he killed the deceased. To drown a person is to deprive him of life by immersion in water or other liquid. The indictment here, in effect, charges the defendant with taking the life of Sandy Ann Scott by immersing her in a branch, or stream of water. The word 'branch' when considered with the word 'drowned' could not relate to any of the definitions which we have quoted above from appellant's brief.

The demurrer to the indictment was properly overruled.


On Saturday, February 23, 1963, Duncan was an employee of Lasseter's Motel, which was located on the Guntersville Highway in Etowah County. He lived in one of the rooms of the motel. His work seems to have been that of a general handy man, cleaning rooms, looking after the premises and performing other menial tasks.

About six o'clock on that evening J. L. Walker, Elbert Ross, Mrs. Margaret Scott and Miss Jackie Dixon began occupancy of a room in the Lasseter Motel which was situated next to that in which Duncan lived. With them was Mrs. Scott's eighteen-month-old baby girl, Sandy Ann Scott. Walker alone registered for the room, but Mrs. Scott claimed to be Walker's wife and Miss Dixon claimed to be the wife of Ross.

At about ten o'clock on the night of February 23, 1963, Ross and the two women left the motel to get some food. When they left, Walker and the baby were asleep in the same bed. Ross and the two women were gone about an hour. When they returned, Walker was still asleep. The baby was not in the room.

Ross and the two women awakened Walker and inquired as to the whereabouts of the baby. Walker replied, 'What do you mean.' A search for the baby was begun after the motel office was notified that the baby was missing. The owner of the motel got in touch with the 'Rescue Squad' and representatives of that organization soon appeared on the scene and began searching operations.

Dewey Colvard, the Sheriff of Etowah County, was notified that the baby was missing and he sent some of his deputies to the motor court and they joined in the search.

Sheriff Colvard reached the scene at about 1:45 A.M. on the morning of the 24th of February, 1963. He joined in the search. Walker, Ross, Mrs. Scott, the baby's mother, and Miss Dixon were carried to the Sheriff's office, where they remained until about 9:00 A.M. on Sunday, the 24th of February.

Sheriff Colvard and one of his deputies entered the room or cabin at the motel where Duncan lived at about 3:00 A.M. on the morning of the 24th of February. The manner in which they gained entrance to Duncan's room does not appear. Duncan was awakened and talked to by the Sheriff and his deputy. The Sheriff and his deputy were looking for the baby. They looked around the room and in the adjoining shower, first using a flashlight and afterwards the overhead light was turned on. The Sheriff saw a lot of clothes on the floor but did not see any baby clothes. He did see a 'pair of coveralls--overall pants' on the floor, which he did not examine. After he finished talking with Duncan the Sheriff turned off the lights and he and his deputy left. There is no evidence that the Sheriff or his deputy had a search warrant on that occasion.

Shortly after 6:00 on the morning of Sunday, February 24, 1963, the body of the baby was found face down in a lake not far distant from the motel. Pictures of the baby were taken before she was removed from the lake. These pictures were admitted in evidence.

On his way to a funeral home with the baby's body, Sheriff Colvard called for the assistance of Mr. William T. McVay, a State toxicologist, who arrived in Gadsden within a short time and, after examining the body at the funeral home, determined that death was caused by drowning. Mr. McVay took pictures of the deceased at the funeral home, which were admitted in evidence.

Sheriff Colvard concluded his questioning of Walker, Ross, Mrs. Scott and Miss Dixon at his office around nine or ten o'clock on Sunday morning, February 24th. The record does not indicate that the 'Q. Now then, the following morning, I believe that you came back, and you sent your Deputies out to have him arrested--Duncan.

questioning of those persons revealed any information which tended to connect Duncan with the commission of the crime, yet immediately after the questioning, Sheriff Colvard sent Chief Deputy Reynolds and three other deputies to the motel. On direct examination Sheriff Colvard stated that he sent the deputies to the motel with an order that Duncan be 'brought in, picked up.' On cross-examination he was asked the following question and gave the following answer:

'A. Yes, sir.'

Reynolds and the other deputies arrived at Duncan's room about eleven o'clock on the morning of February 24th. Chief Deputy Reynolds was the only witness as to what occurred on that occasion. According to Reynolds, one of the deputies knocked on Duncan's door. Duncan invited them in but the record does not support a finding that before the invitation was extended Duncan was advised that those who wished to enter were police officers. According to Reynolds, the lock on the door 'was broken, or didn't work, or something.' When the deputies entered the room Duncan was in bed, although apparently awake. The deputies did not have a search warrant and apparently did not have a warrant for Duncan's arrest, as Reynolds testified that Duncan was not arrested on that occasion. Reynolds testified that he 'instructed him to get dressed' and also said, 'I asked him, when he dressed, to come on, that I wanted him to go down to the Court House, that the Sheriff wanted to talk to him.' While Duncan was dressing a search was made of his room and shower. The deputies found a pair of 'blue jeans' on the floor near or under Duncan's bed. They were wet for a distance of ten to twelve inches from the bottom of the trouser legs and red mud was on the bottom of the trousers....

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