Glenn v. State, 6 Div. 282

• Decision Date: 07 October 1980
• Docket Number: 6 Div. 282
• Citation: 395 So.2d 102
• Parties: Essel McDonald GLENN, alias v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 102

395 So.2d 102

Essel McDonald GLENN, alias v. STATE.

6 Div. 282.

Court of Criminal Appeals of Alabama.

Oct. 7, 1980.

Rehearing Denied Oct. 28, 1980.

Donald W. Davis, Birmingham, for appellant.

Charles A. Graddick, Atty. Gen., and J. Thomas Leverette, Asst. Atty. Gen., for appellee.

TYSON, Judge.

Essel McDonald Glenn was indicted for assault with intent to murder one William Stidham, an Alabama Power Company employee. Glenn pleaded not guilty, and at trial was found guilty of assault and battery by the jury, which assessed a fine of $500.00. To this fine was added a sentence of six months at hard labor for the county by the court, and Glenn's petition for probation was denied.

William Stidham, a Birmingham resident, testified that he was a service troubleman employed by Alabama Power Company, and that part of his job involved restoring electric service to individuals whose service had been terminated for nonpayment. He stated that, on July 30, 1979, while so employed, he received a radio call to proceed to 3715 Banks Street in Brighton to restore electric service to that residence. Mr. Stidham stated that he arrived at the location at 3:00 o'clock and stopped at a house to inquire of the occupant where 3715 Banks was situated. He testified that he "happened" to stop at appellant's house, and appellant told him that he was at the right house. Mr. Stidham identified appellant as the individual he talked with. He further stated that, being unable to park directly in front of appellant's house, he drove down the street a short distance and parked there. He then walked between appellant's house and the neighboring house to the location of appellant's electric meter and proceeded to work on the meter. After finishing that task, the witness stated, he proceeded to return to his truck in order to drive around to the alley where a pole containing appellant's power lines was located. He stated that he exchanged a few words with a neighbor and was walking down beside appellant's house when appellant "asked was I the S.O.B. that turned his lights off" (R. 10). Mr. Stidham stated that he told appellant that he had not turned the power off but was only trying to turn it "back on," at which point appellant said, " 'You S.O.B., I'm going to kill you' " and " 'I'm going to kill all of you damn Power Company men' " (R. 11). After attempting to calm appellant down, Mr. Stidham testified, he tried to return to his truck, and, as he walked by appellant, appellant stated, " 'You S.O.B., you are fifteen feet on my property. I'm going to kill you' " (R. 11). The witness stated that he turned around and saw appellant holding a .22 rifle, and that appellant began firing at him. Mr. Stidham testified that he started running and that bullets were hitting in the dirt behind him. He further stated that he was shot twice in the leg and "the last few shots went zooming by my head and shoulders" (R. 12). He testified that, upon reaching the truck, he radioed that he had been shot, and then he drove about a block and a half to the Brighton police station. He also stated that, though he had used a screwdriver to reassemble appellant's meter, he had not removed it from his tool pouch after that.

On cross-examination Mr. Stidham stated that he could not remember having yelled anything at appellant as he left, that he intended to institute a civil action against appellant, and that he could not remember whether the two Brighton police officers who left the station for appellant's house had a shotgun.

Officer David Tucker, a Birmingham resident and patrolman with the Brighton Police Department, testified that he had been on duty at the police station around 3:00 o'clock on July 30, 1979, when William Stidham entered the building and said that he had been shot. He stated that Mr. Stidham told him that the location of the shooting was 3715 Banks Street, and that subsequently he (Officer Tucker) and Brighton Police Chief Sims went to that address. When they arrived, they saw appellant sitting on his porch and the chief instructed appellant to come to the car. Officer Tucker testified that appellant in turn told the chief to come there, and the officer and the chief proceeded to get out of the car. At that point, Officer Tucker stated, appellant "reached for the gun" (R. 30) resting against a banister on the porch; the officer stated that he told appellant that "I wouldn't do it if I was him" (R. 30). The officer then testified that, when he told appellant that he wanted to talk to him about the shooting, appellant replied, " 'Yes, I shot him' " (R. 30). Appellant was then taken to the police station. Officer Tucker stated that he took the .22 rifle, examined it and concluded that it had been recently fired. The rifle was received into evidence.

On cross-examination, Officer Tucker stated that, though his police car had a shotgun mounted in it, he did not remove the gun upon arrival at appellant's house, and did not remember seeing the chief with it. He stated that the gun could only be removed by pressing a button on the driver's side, and that he had not pressed the button that day. He reiterated his testimony that appellant said, " 'I shot him' " and stated that appellant was not under arrest when he took him to the police station, but that he was transferred to the county jail a short time later.

The State rested at this point, and appellant's motion to exclude the evidence was overruled.

The first defense witness was Mrs. Helen Glenn, who stated that she had been married, divorced and remarried to appellant. She testified that, during the week prior to July 30, 1979, she was in Akron, Ohio, with her mother, and that appellant had driven there to bring her back to Alabama. She and appellant arrived at appellant's residence during the early morning hours of the Sunday immediately preceding July 30, 1979, and upon arrival discovered that the power had been turned off, causing food stored in the freezer to spoil. She stated that she was listening on another line when her husband called the Power Company about restoring the power, and that the Power Company person was "very rude" (R. 53), but that appellant was not rude nor did he threaten to kill anyone. On cross-examination, Mrs. Glenn stated that she was not present during the incident on July 30, 1979, and thus did not know if appellant had threatened Mr. Stidham or not.

Mrs. Bonita Martin, the next door neighbor of appellant, testified that, on July 30, 1979, at around 3:00 o'clock, she had been outside hanging out some laundry when she saw a Power Company employee between the two houses. She testified that he made some small talk with her and that he walked around her back yard to look at the power pole. She stated that he then left and walked back down between the two houses; at that point he asked appellant "how it was going," to which appellant replied, " 'Not too good' " (R. 59). She then testified that she heard the Power Company man tell appellant that if appellant wanted to talk to him, he (appellant) would have to come out in the alley. The next thing she heard was the Power Company man saying, " 'If you shoot me with that gun, you son of a bitch, you won't shoot nobody else with it' " (R. 60), after which she heard shots. Mrs. Martin stated that she then saw the Power Company man sitting in his truck talking on the radio, and that he shouted to appellant, " 'You're going to pay for this, big Daddy' " (R. 61) as he drove off.

Following this incident, Mrs. Martin stated, she witnessed one white and one black Brighton police officer arrive at appellant's house, and that one had a shotgun. She saw the black officer approach appellant's porch, and saw them in conversation but could not hear what was said. She stated that the officer told appellant to " 'just shut up and get in the car' " (R. 65), and that they then took appellant away. She did not see appellant reach for his rifle. On cross-examination, the witness stated that she did not see the Power Company man with a screwdriver in his hand and did not see the actual shots fired because she retreated into her house.

The appellant took the stand in his own defense and stated that he was employed at Pullman Standard and had formerly been a member of the United Steelworkers Union. At this point a lengthy discussion was had, with the jury retired, concerning the extent to which appellant would be permitted to testify concerning union difficulties. At the conclusion of this discussion, appellant stated that he had driven to Ohio to retrieve his former wife (they were not remarried at the time), and upon returning to his home, they had discovered that the power was off and an "awful odor" was present in the house from spoiled food in the freezer. He stated that, upon phoning the Power Company, he was told that he would have to put down another deposit and pay his delinquent bill before his power would be restored. He testified that, on Monday, July 30, 1979, he went out to Pullman Standard, picked up his pay check, went to the bank and then downtown to take care of the power business. When he returned, he mowed his grass and was then seated on his front porch when the Alabama Power truck pulled up and the driver inquired as to the address. He stated that the man parked the truck a short way down the street and was walking by the porch on the way to the meter when he inquired of appellant how he was doing. Appellant stated that when he replied, " 'Better than most,' " the Power Company employee turned and said, " 'What do you mean by that, you scabbing son of a bitch' " (R. 88). Appellant then testified that, in 1976, he had crossed a picket line at Pullman Standard, and that he had been subsequently beaten at his home by two union members. He had then purchased a .22 rifle, which he kept loaded and "always where I can get to it if I need it" (R. 91). Appellant testified that, after being called a "scabbing son of a...