Ex parte Warsham

• Decision Date: 18 December 1919
• Docket Number: 7 Div. 28.
• Citation: 84 So. 889,203 Ala. 534
• Parties: Ex parte WARSHAM.
• Court: Alabama Supreme Court

84 So. 889

203 Ala. 534

Ex parte WARSHAM.

7 Div. 28.

Supreme Court of Alabama

December 18, 1919

Certiorari to Court of Appeals.

Original petition by Walter Warsham for a writ of certiorari to the Court of Appeals. Writ granted, and judgment of the Court of Appeals, affirming a conviction of murder in the second degree in case of Warsham v. State, 84 So. 885 reversed and remanded.

P.E Culli, J.S. Franklin, and L.B. Rainey, all of Gadsden, for appellant.

J.Q Smith, Atty. Gen., and Richard Evans, Asst. Atty. Gen., for the State.

GARDNER J.

Walter Warsham, a police officer of the town of Alabama City, was convicted of murder in the second degree for the killing of one Holmes, and was sentenced to imprisonment in the penitentiary for a period of 12 years. The judgment of conviction was affirmed by the Court of Appeals (84 So. 885), and the defendant files this petition for certiorari to review the decision of said court.

The shooting occurred at the home of Mrs. Annie Powell, who lived on White street, in Alabama City, and resulted from the effort of the defendant as a police officer to arrest the deceased without a warrant. There was evidence on the part of the state tending to show that the defendant, in company with one Harris, another policeman of said town, went to the home of Mrs. Powell without good excuse therefor--for a personal motive--and under the guise of arresting the deceased, who was guilty of no offense, assaulted and shot him, without justification or excuse. The evidence for the state further tended to show that Mrs. Powell was not at home, but was on the street--a short distance therefrom--and met the defendant and his companion, requesting that they do not go to her house.

The defendant's evidence tended to show that he went to the home of Mrs. Powell to investigate a complaint made by two citizens, neighbors of Mrs. Powell, as to the conduct of deceased and his companion, another soldier; that upon reaching the home of Mrs. Powell, and while yet on the sidewalk, they heard loud cursing and boisterous conduct within the house by the deceased; that thereupon they went into the house, and defendant attempted to arrest the deceased, who was very drunk and offered violent resistance thereto, and also assaulted the defendant; that the defendant fired one shot at the deceased, as he (deceased) drew his hand to his hip pocket with a threat of killing defendant. This one shot resulting in the death of deceased.

It thus appears from the foregoing brief statement that the jury could infer from the evidence offered by the state that the defendant, for personal reasons and without any excuse whatever, went to the home of Mrs. Powell, and there assaulted and murdered the deceased, and was therefore a trespasser upon the premises and the aggressor in the difficulty. The defendant did not know the deceased, and to his knowledge had never seen him before.

To rebut the tendency of the evidence for the state, above mentioned, and to explain his presence at Mrs. Powell's house (her request to the contrary notwithstanding), the defendant offered to show that two citizens living in that neighborhood, viz. Messrs. Scarborough and Parrish, came to him while he was on duty as a police officer of Alabama City, informing him that there were drunken soldiers at Mrs. Powell's house, and had been there the entire afternoon, and had been guilty of conduct objectionable to their wives, who were afraid to stay at home while they (Scarborough and Parrish) went to their work, and that they wanted him to go there and make an investigation. Scarborough and Parrish were placed upon the stand by the defendant, and this testimony was sought to be elicited from them; but the objection of the state was sustained thereto.

This was error, which, in our opinion, should work a reversal of the cause. To rebut the inference the jury was authorized to draw from the evidence offered by the state, the defendant had the right to show that he had only come to Mrs Powell's house after complaint had been made by these two citizens, who lived near by, that the deceased and his companion were drunk and were guilty of objectionable conduct. Such evidence would tend to explain defendant's presence, and that his motive was not a wrongful one, as contended by the state. That it was prejudicial is quite clear; and, indeed, is further demonstrated by the cross-examination of defendant by the state, wherein he was asked...