Evers v. State

• Decision Date: 30 June 1933
• Docket Number: 5 Div. 904.
• Citation: 25 Ala.App. 537,150 So. 172
• Parties: EVERS v. STATE.
• Court: Alabama Court of Appeals

150 So. 172

25 Ala.App. 537

EVERS v. STATE.

5 Div. 904.

Court of Appeals of Alabama

June 30, 1933

Rehearing Denied Sept. 12, 1933.

Appeal from Circuit Court, Tallapoosa County; S. L. Brewer, Judge.

Wensley alias Winslett, Evers was convicted of manslaughter in the first degree, and he appeals.

Affirmed.

Certiorari denied by Supreme Court in Evers v. State (5 Div 163) 150 So. 174.

See also, 24 Ala. App. 55, 129 So. 785.

Jas. W Strother, of Dadeville, for appellant.

Thos. E. Knight, Jr., Atty. Gen., and Jas. L. Screws, Asst. Atty. Gen., for the State.

BRICKEN Presiding Judge.

The indictment charged appellant with murder in the first degree, in that he unlawfully and with malice aforethought killed Jesse Pearson by shooting him with a gun or pistol. The trial resulted in the conviction of appellant of manslaughter in the first degree, and his punishment was fixed by the jury at forty-two months' imprisonment. Whereupon the court duly and legally sentenced him to imprisonment in the penitentiary for the term stated. From the judgment of conviction pronounced and entered, this appeal was taken.

The evidence discloses without dispute or conflict that this appellant is a white man and that Jesse Pearson, the deceased named in the indictment, was a negro.

The evidence without conflict also tends to show that Jesse Pearson, the deceased named in the indictment, was killed, upon the occasion and at the time complained of, by having been shot through the neck with a pistol. Thus the corpus delicti is established.

In this case there is no evidence tending to show that the killing was the result of a difficulty between the deceased and the person who fired the fatal shot; and, as we see it, there is but one question involved in this case, and that question is the identity of the person who did the killing.

As a rule in homicide cases, numerous questions are presented for decision. Most frequently the question of self-defense is involved, and in many instances, under defendant's plea, self-defense, justification, or facts tending to mitigate the punishment or to excuse the accused entirely must be determined. But in the instant case we are not called upon, under the evidence, or issues, to pass upon any of these points of decision; for here the undisputed evidence tends to show conclusively that the homicide complained of was unlawful and that the perpetrator is guilty of one of the degrees of unlawful homicide.

The state contends, and offered evidence of numerous witnesses which tended to show, that this appellant was the person who fired the fatal shot. The only witness upon the trial who testified he saw the killing was state witness Tommy Chambliss. Among other things he said: "I knew Jesse Pearson in his life time; I was with him on Sunday, February 17, 1929, he was shot that day; I was present at the time of the shooting; * * * I was in the car with Jessie, Mr. Evers got to the place first, we passed them when we got there; Mr. Evers had already stopped; Mr. Evers was in the car and the other two men were with him; as we passed some of them throwed up their hand for us to stop, I stopped quick as I could. We were not about even with them at the time we stopped we run by them, I stopped pretty close behind his car and he got out; * * * he came up to the car, me and Jesse were sitting in the car, Mr. Evers came up to the car, there wasn't anybody with him, when he came to the car my car was headed in the direction of Dadeville, when Mr. Evers came to the car he asked us what we were hunting, liquor? Jessie spoke up and told him, 'Yes, sir,' he asked how much, Jessie said a pint or a quart, any amount we can get and he said, heh, heh, and reached in his overalls and said, 'this enough,' and Jessie said, 'please don't shoot us, you know us.' He said, I say, damn it, is this enough and he caught hold of Jessie's hand and pulled him over and shot him; when he shot him Jessie just fell back in the corner. When I seen him come out with that gun I got out the car; I was driving our car, I was sitting under the steering wheel; when Jessie Pearson got shot I run, I run right out the road towards Dadeville, towards my home, I finally got to Dadeville, it was about night when I got there, about six o'clock, I reckon, I don't know exactly what time it was when the shooting took place, some where about dinner time, I reckon." In addition to the foregoing, the evidence disclosed that this appellant and his brother and another party carried the wounded man, the deceased named in the indictment, from the place of shooting to the office of Dr. Banks in Dadeville, where in the presence of numerous persons, including appellant, the wounded man, after full and proper predicate, stated to his mother, "Mama, I am shot...