Freeman v. State

• Decision Date: 25 May 1954
• Docket Number: 6 Div. 788
• Citation: 74 So.2d 513,37 Ala.App. 623
• Parties: Grady FREEMAN v. STATE.
• Court: Alabama Court of Appeals

Page 513

74 So.2d 513

37 Ala.App. 623

Grady FREEMAN v. STATE.

6 Div. 788.

Court of Appeals of Alabama.

May 25, 1954.

Rehearing Denied June 22, 1954.

Chas. R. Wiggins, Jr., and Caine O'Rear, Jr., Jasper, for appellant.

Si Garrett, Atty. Gen., Robt. Straub, Asst. Atty. Gen., and Owen Bridges, of counsel, for the State.

The following charges were refused to defendant:

'5. The court charges you that you are not authorized to find a verdict of guilty on any testimony of the witness or witnesses if you have a doubt as to the truth of his or their statements.'

'10. The court charges the jury that it is not necessary under the evidence in this case that the defendant, Freeman, should have been actually in danger of death or great bodily harm at the time he shot Williams in order for him to be justified in shooting Williams. Freeman had the right to act on the appearance of things at the time, taken in the light of all evidence. If the circumstance attending the shooting was such to justify a reasonable man in the belief that he was in danger of great bodily harm or death, and he honestly believed such to be the case, then he, Freeman, had the right to shoot Williams in his own defense although as a matter of fact, he was not actually in danger; and if the jury believes this defendant acted under such conditions and circumstances as above set out, the burden of showing he was not free from fault in bringing on the difficulty is on the State and if the State has not shown beyond all reasonable doubt that Freeman was not free from fault in bringing on the difficulty, then the court charges the jury you should find the defendant, Freeman, not guilty.

'11. The law gives a person the same right to use such force as may be reasonably necessary under the circumstances by which he is surrounded to protect himself from great bodily harm, as it does to prevent his life from being taken, and such person may excusably use this necessary force to save himself from a felonious assault.'

'21. The court charges the jury that if at the time this defendant shot Williams there was apparent danger of the defendant receiving great bodily harm at the hands of Williams, whether in fact there was any real danger or not, then the defendant, Freeman, had a right to shoot Williams to protect himself; and if, after considering all the evidence in the case, you delieve this to be the truth, then the court charges the jury you should find this defendant not guilty provided the defendant was free from fault in bringing on the difficulty.'

'33. If you believe from the evidence that Grady Freeman was assailed by A. Williams within the precincts of his dwelling, and that A. Williams was at fault in instituting the combat, then you must find the defendant not guilty.'

CARR, Presiding Judge.

The appellant, Grady Freeman, was indicted for murder in the first degree. The trial resulted in a conviction for murder in the second degree.

The list of jurors served on the defendant contained the name of Minnie L. Rufus King, residing in Beat 30, Walker County, Alabama.

It appears that Refus King was the only person by that name who resided in this beat. He did not respond to the summons, but when the case was called for trial he was sent for and appeared. After being questioned by the court in the presence of the defendant and counsel he was excused because of ill health.

Appellant's attorneys moved to quash the venire, taking the position that the mistake in the name did not apprise the defendant of an accurate list.

In brief counsel relies on Carwile v. State, 148 Ala. 576, 39 So. 220.

In the case of Irwin v. State, 220 Ala. 160, 124 So. 410, the Supreme Court pointed out the inapplicability of the Carwile case because of subsequent changes in the law.

In any event, it does not appear that we have an analogous factual situation in the case at bar. There was only a mistake in the name of the venireman by the inclusion of 'Minnie L.'

The courts have held that a mere mistake in the name of a juror appearing on the venire list does not give rise to any merit in a motion to quash. Ziniman v. State, 186 Ala. 9, 65 So. 56; Phillips v. State, 248 Ala. 510, 28 So.2d 542; Savage v. State, 174 Ala. 94, 57 So. 469; Gordon v. State, 22 Ala.App. 214, 114 So. 279; Jackson v. State, 22 Ala.App. 133, 114 So. 68.

See also, Title 30, Sec. 37, Code 1940.

We do not see the necessity or need to go into a detailed delineation of the evidence.

The question of prime concern from a factual approach is whether or not the accused was acting in self-defense when he took the life of the deceased.

Alcie Williams, the dead man, was a brother of the appellant's wife. It appears that he was a shiftless kind of person. Apparently he imposed himself on the hospitality of his sister and brother-in-law. In any event, just prior to the homicide he had been a prolonged guest in their little rural home and he made no contributions to expenses of the very large household.

It is accurate to observe that he was engaged in making whiskey while he was a visitor in the home. There is some tendency in the evidence that the appellant aided in this unlawful enterprise. This relationship, be it business or social, brought about inharmonious differences which led up to the fatal shooting.

The homicide occurred within the curtilage of the defendant's home or at a place close by.

The state toxicologist gave the following description of the wounds on the body of the deceased:

'A. There was some superficial abrasions on his face, on the right jaw and on the neck below the jaw, and on the left side on the cheek particularly on the cheek bone and on the underside of the jaw about half way between the chin and the ear. There was a bruise in the upper eyelid of the right eye, about three-eighths of an inch by three-fourths of an inch, right in the inner corner of the eye. The left upper eyelid was blackened with the greatest discoloration on the inside.

'Q. Did you observe what appeared to be a bullet would in this body? A. Yes, sir. 'Q. Will you point out on me just where it was located? A. One was two inches below the line of the shoulders, one and one half inch to the right of the exact center of the chest. The bullet came out at a point two inches to the right of the spine and at a point six inches below the base of the neck. There were two bullet wounds in the top of the head, slightly forward of the exact top, separated by about one or one and one-fourth inches, one being slightly to the right of center and the other slightly to the left of center. The one that was to the left of center went down through the brain and struck the skull about level with the ear, about the bottom of the brain pan, and glanced back and lodged near these holes. The one on the other side went down and struck the bone right back of the eye and shattered it and went on into the face or neck muscles down several inches into the neck.'

The question of the sufficiency of the evidence to sustain the verdict is raised only by a motion for a new trial. Unquestionably we should not disturb the judgment of the court in his action in overruling the motion. Counsel does not contend that we should.

Two of the defendant's sons were present at the time of the homicide and testified in their father's behalf. They had been called and testified before the grand jury which returned the indictment.

On cross-examination in the trial below each of these boys was interrogated at length with reference to his testimony before the grand jury. It was developed that their testimony before the grand jury was in some aspects in conflict with that given at the trial then in progress.

The insistence is made that, for impeachment purposes, the solicitor did not pose the proper predicate in that he failed to state the time the boys were before the grand jury and the persons present in this group.

The reason for the rule upon which the position is based is to avoid taking the witness by undue surprise. If his attention is directed with reasonable certainty to the time, place, and persons present, it cannot be said that the rule has been violated.

In the instant case the solicitor directed the attention of the witnesses to the fact that he was inquiring about a time subsequent to the homicide, when he (the solicitor) was present and asking the questions and when a number of other persons were in the room.

This question was recently reviewed by the Supreme Court in the case of Sparks v. State, Ala.Sup., 75 So.2d 103. The opinion goes into the matter at some length.

We entertain the view that these witnesses were not taken by surprise and they were not in doubt about the occasion to which the questions related.

It may be noted that the objections did not point out to the court any nonadherence to the predicate rule.

It is urged also that many of these questions which were propounded to these witnesses for impeachment purposes did not relate to matters that were inconsistent with the witnesses' testimony on direct examination. Cotton v. State, 87 Ala. 75, 6 So. 396; Western Ry. of Alabama v. Turrentine, 197 Ala. 603, 73 So. 40; Lester v. Jacobs, 212 Ala. 614, 103 So. 682; Phillips v. State, 248 Ala. 510, 28 So.2d 542.

Because of the great number of inquiries involved it is not practical to point out each one specifically. We find that there are some which do not refer to matters that are strictly contradictory. In many instances in this aspect no objections were interposed. Where objections are made the queries were more or less preliminary and led up to inquiries that were in conflict with statements made on direct examination.

We have given considerable study to the record in this aspect. Taking the entire setting into account, we are conviced that the substantial rights of the accused were not jeopardized in this particular. Supreme Court Rule 45, Code 1940, Tit. 7 Appendix.

During the progress of the introduction of the...