Ellis v. State, 7 Div. 437
| Decision Date | 15 June 1976 |
| Docket Number | 7 Div. 437 |
| Citation | 338 So.2d 428 |
| Parties | Raymond ELLIS v. STATE. |
| Court | Alabama Court of Criminal Appeals |
Loma B. Beaty, Fort Payne, for appellant.
William J. Baxley, Atty. Gen., and Ellis D. Hanan, Asst. Atty. Gen., for the State.
Appellant went to trial in the DeKalb County Court upon the original complaint charging him with the offense denounced by Title 14, Section 115(1), Code of Alabama 1940. Specifically he was charged with willfully or wantonly destroying 46 head of cattle, the personal property of H. W. Thompson, of the value of $18,500.00. The above section charges a misdemeanor and provides that the punishment must be proportioned to the offense and shall be a fine of not more than $10,000.00 or a sentence to imprisonment in the County Jail or to hard labor for the County for not more than 12 months. Appellant demanded a jury trial. At arraignment, in the presence of retained counsel, appellant pleaded not guilty. The jury found appellant guilty as charged and assessed a fine of $10,000.00 against him. As additional punishment the trial court sentenced him to imprisonment in the County Jail for 12 months. At the time sentence was imposed, appellant gave notice of appeal.
The evidence adduced by the State is not contradicted. Appellant did not testify but offered evidence as to his good reputation and character.
Appellant and the complaining witness, Mr. H. W. Thompson, were neighbors and had been for a good many years. Both were engaged in raising cattle and tendencies of the State's evidence for the State disclosed that appellant and the complaining witness had been feuding for a number of years because a number of Mr. Thompson's cattle were found dead in one of his pestures and he suspected appellant was poisoning his cattle.
In March of 1975 Mr. Thompson fed his cattle from a haystack that was in one of his pastures and soon thereafter he noticed the cattle became sick and unsteady on their feet and they fell on the ground and Dr. Killian testified that when he viewed the cattle, they were showing signs of intense pain in the abdominal cavity, walking humped up, kicking up at their stomachs with the back feet, getting up and lying down, and some rolling, and some down to the point where they couldn't rise, that they had a very weak, rapid heartbeat, and labored breathing. He further testified:
died. Mr. Thompson contacted the Sheriff of DeKalb County, a Mr. Morris Cousins of the Cattlemen's Association, and Dr. G. S. Killian, a veterinarian of Fort Payne, Alabama, all of whom came to the Thompson place and viewed the dead and dying cattle.
Dr. Killian stated that he had practiced veterinarian medicine for 27 years and in that time he had performed many autopsies. He said he removed the liver and the contents of the rumen and put them in separate plastic bags and turned the bags over the the Sheriff to deliver to the Department of Toxicology in Huntsville.
He further testified that in his professional opinion the cow on which he performed the autopsy died from arsenic poisoning.
Martha Odom, a criminologist with the Department of Toxicology in Huntsville, testified that she examined a substance identified to her as being part of a liver, finding an arsenic content therein, and further testified that she examined a substance identified to her as hay, and found an arsenic content therein. She stated that she could not determine from the tests she made whether sufficient arsenic existed in the animal tissue to cause death, nor could she testify that the content of arsenic in the substance identified to her as hay was sufficient to cause death.
Appellant filed a motion to suppress any statements made by him that tended to incriminate him on the ground that he was not give the Miranda rights and warnings, and considerable testimony was taken on this motion. It developed that while appellant was arrested and carried to jail, the record does not reflect that he was interrogated by any law enforcement officers. On the contrary, the testimony shows that appellant expressed a desire to talk to Mr. Thompson and his two sons.
A Deputy Sheriff went to Mr. Thompson and told him that appellant wanted to see him. Mr. Thompson went to the Sheriff's Office to see appellant. Appellant was not in jail but in an office below the Sheriff's Office. When Mr. Thompson entered the office, he asked appellant, 'Did you send for me?' Appellant said, 'Yes, why can't we be friends?' Mr. Thompson said, Appellant replied, That was all that was said at that time and Mr. Thompson walked out of the office.
Mr. Thompson went and got his two sons and returned somewhere around 9:00 or 9:30 that night and they all had a conversation with appellant. This conversation took place in the same office as the first conversation with Mr. Thompson and appellant. The Thompsons were not law enforcement officers and there were no law enforcement officers present at this meeting with appellant. Appellant's counsel objected to any conversation had at that time because appellant was in custody of the Sheriff. The Court overruled the objection and the testimony continued:
From the record 'A. Well, he said, we went in, spoke to him, and sat down, and asked him why he was poisoning our cattle.
'Q. Who asked him that?
'A. I did.
'Q. All right, sir.
'A. And he said, 'I don't know'; and he said, 'I poisoned your cattle; y'all can go ahead and send me off'; but said, 'Don't sue me and take my home away from my wife and kids.' And I said, 'We don't want your home; all we want to do is get you for poisoning our cattle.'
'Q. Is that all that was said, Mr. Thompson?
'A. Well, no, we talked on a while.
'Q. Tell us whatever you can recall.
'A. That may be hard for me to remember. He said, 'I didn't mean to kill all your cattle,' said, 'I just meant to kill three, or four, or five,' and said, 'Jimmy,' said, 'your cattle, I can get you them back, your three,' but said, 'I can't give your daddy back his because I ain't got that many.' He said, 'I will work by the year if y'all won't sue me and take my home away from my wife and kids; I will work for the year and pay you back everything above my living to pay y'all for those cattle I killed.'
...
To continue reading
Request your trial
-
Anderson v. State
...Court must accept as true the evidence introduced by the State and accord the State all legitimate inferences therefrom. Ellis v. State, 338 So.2d 428 (Ala.Cr.App.1976); Edson v. State, 53 Ala.App. 460, 301 So.2d 226 (1974). The evidence must be considered in the light most favorable to the......
-
Centobie v. State
...762 (Ala.Crim.App. 1981), writ denied, 398 So.2d 766 (Ala. 1981); Truex v. State, 282 Ala. 191, 210 So.2d 424 (1968); Ellis v. State, 338 So.2d 428 (Ala.Crim.App.1976); Bedingfield v. State, 47 Ala.App. 677, 260 So.2d 408 (1972).' Warrick v. State, 460 So.2d 320 (Ala.Cr.App.1984). See also ......
-
Bankhead v. State
...Court must accept as true the evidence introduced by the State and accord the State all legitimate inferences therefrom. Ellis v. State, 338 So.2d 428 (Ala.Cr.App.1976); Edson v. State, 53 Ala.App. 460, 301 So.2d 226 (1974). The evidence must be considered in the light most favorable to the......
-
Jackson v. State
...him any promise if he did confess, the confession under such circumstances is voluntary and admissible in evidence. Ellis v. State, Ala.Cr.App., 338 So.2d 428, 432 (1976); Kircheis v. State, 56 Ala.App. 526, 323 So.2d 412 (1975), cert. denied, 295 Ala. 409, 323 So.2d Primm v. State, 473 So.......