Farley v. State, 6 Div. 108

• Decision Date: 06 January 1966
• Docket Number: 6 Div. 108
• Citation: 182 So.2d 364,279 Ala. 98
• Parties: Donald Dalton FARLEY v. STATE of Alabama.
• Court: Alabama Supreme Court

Page 364

182 So.2d 364

279 Ala. 98

Donald Dalton FARLEY v. STATE of Alabama.

6 Div. 108.

Supreme Court of Alabama.

Jan. 6, 1966.

Rehearing Denied Feb. 10, 1966.

Beddow, Embry & Beddow, Birmingham, for appellant.

Richmond M. Flowers, Atty. Gen., and John C. Tyson, III, Asst. Atty. Gen., for the State.

MERRILL, Justice.

Appellant appeals from a judgment and sentence of thirty-five years imprisonment based upon a verdict finding him guilty of murder in the second degree. He shot and killed Elouise Goldwin on September 24, 1963. Motion for a new trial was overruled.

Appellant owned the establishment known as Curley's Barbecue on 41st Street between 1st Avenue North and 1st Avenue South in Birmingham. The deceased operated it for him while he worked for a pest control company, and he assisted her when he was not working at his regular job.

Around 6:30 P. M. on the day of the shooting, a woman, Jean Wisner, who was going to start working in the restaurant the next day, a customer, W. T. George, who had been there before, and the deceased were in the public part of the restaurant and a colored woman and a colored boy were in the kitchen. Appellant came into his place of business and by his own testimony and that of Jean Wisner, he had been drinking. He told deceased he needed some money for tire repairs on his car; she gave him $2.00, he said he needed more and she gave him $5.00 from the cash register. She showed him how she had rearranged some furnishings and he told her that he had seen one James E. Milam at Barney's Place on Fifth Avenue and 52nd Street North and that Milam told him that he had shot up Curley's Place once and 'if I didn't like it he would shoot me.'

While the deceased was standing behind the cash register, appellant grabbed deceased around the neck and Jean Wisner pushed him away from the deceased. He came out in front of the counter and reached across it for a pistol which was under the counter. The deceased tried to keep him from getting it but failed. Both Jean Wisner and W. T. George testified that appellant asked, 'Don't you believe I will shoot you?', and the deceased replied, 'Yes, I believe you will,' and he fired the pistol one time and she was struck in the head by the bullet and killed. At that moment, W. T. George, sitting at the counter, was about three feet from the deceased and four feet from appellant.

Appellant based his defense upon proving that he accidentally killed Elouise Goldwin. He attempted to prove this by showing that he had the gun in his hand because his life had been threatened that afternoon by Milam and that he believed such threat because of Milam's reputation for violence.

The trial court let appellant testify that he had seen Milam that afternoon, and that Milam had said that he had shot up Curley's Place once 'and if I didn't like it he would shoot me.' These quotations from the record followed that statement:

'Q At that time, did you know his (Milam's) general reputation in the community in which he worked, or in the community in which he lived, for being a turbulent, violent, blood-thirsty, uncompromising individual? Answer 'yes' or 'no.'

'MR. BARNARD: We object to that, Your Honor. No proper bearing.

'THE COURT: Sustain the objection.'

Counsel for appellant excepted and presented his argument why the testimony should be admitted. The court gave his reasons for the ruling, again sustained the objection, and counsel reserved an exception.

The ruling of the trial court was correct.

In Alabama after evidence has been adduced in a homicide case tending to show that the defendant acted in self-defense, evidence as to the violent and dangerous character...