Golden v. State

• Decision Date: 21 January 1958
• Docket Number: 3 Div. 992
• Citation: 39 Ala.App. 361,103 So.2d 52
• Court: Alabama Court of Appeals
• Parties: Terrell Eugene GOLDEN v. STATE.

Page 52

103 So.2d 52

39 Ala.App. 361

Terrell Eugene GOLDEN v. STATE.

3 Div. 992.

Court of Appeals of Alabama.

Jan. 21, 1958.

Rehearing Denied Feb. 11, 1958.

R. T. Milner, Robt. S. Milner and Holley, Milner & Holley, Wetumpka, for appellant.

John Patterson, Atty. Gen., Bernard F. Sykes and Geo. Young, Asst. Attys. Gen., for the State.

The following charges were refused to defendant:

'101. I charge you, gentlemen of the jury, that, when the evidence relied upon for conviction is circumstantial, the chain of circumstances must be complete and of such character as to convince beyond a reasonable doubt, and if the circumstances shown and proven, with the other evidence in the case, fails to so convince you beyond a reasonable doubt that the defendant is guilty, then you should return a verdict of not guilty in this case.'

'105. The court charges the jury that if the State's witnesses have exhibited prejudice or anger against the defendant and satisfied you that they have not testified truthfully and are not worthy of belief, and you think their testimony should be disregarded, you may disregard it altogether.'

'48. A failure to take precaution against a mere possibility, or even a probability, that a person will put himself in a position which will be rendered dangerous, in the absence of knowledge that some such condition then actually existed, is not more than simple negligence.'

'54. In order to make out a case against the defendant that would authorize you to find him guilty as charged, the court charges the jury that it is incumbent upon the State to satisfy the jury from the evidence in the case beyond a reasonable doubt, that the defendant was guilty of something more than simple negligence merely on the occasion complained of.'

CATES, Judge.

Terrell Golden was convicted in the Autauga Circuit Court of involuntary manslaughter for the fatal shooting of his first cousin, Derrell Golden, a boy of 14. His punishment was set at twelve months' hard labor.

According to the tendencies of the testimony for the State, the facts were:

The defendant, then sixteen years old, and the deceased went to the same school in Prattville. February 22, 1954, they had a fight at school. Later they were seen leaving school together. Both boys lived in a rural area. The defendant went home, gathered some eggs to take to his grandmother, and left carrying a shotgun, a Winchester, model 37, single barrel, 12 gauge.

His grandmother lived in one side of a duplex house and Mrs. Herbert Misseldine, the deceased's sister, lived in the other side. The defendant, after giving the eggs to his grandmother and having some small talk with her and Mrs. Misseldine, turned to go back home and ran about a hundred yards along a path which led into a dirt road through a field. According to his own testimony, he had his shotgun loaded and cocked as he ran. He further testified that he stumbled and fell and that the jolt of his fall caused the gun to go off. As he looked up he saw that he had shot his cousin. No one else saw this.

The defendant ran back to the Misseldine house and told Mrs. Misseldine that he had shot her brother, then he went back with her to the dying boy. He got a neighbor with a truck to take the deceased to the hospital. On the way to the neighbor's, he threw his shotgun in the underbrush some three hundred yards from the place of the shooting. The sheriff, on the witness stand, related that the defendant gave about the same account to him the day after the shooting.

The State brought in testimony of bad feeling between the two boys, though mostly nothing more than characteristic boyhood promises by the defendant 'to get even' except that in one instance, the defendant was shown to have had his hands around his cousin's neck 'choking' him, and another time he said that he was going to kill him. Since the verdict was only for second degree manslaughter, it would seem that the jury attached slight importance to this aspect of the State's case. Moreover, the trial judge instructed the jury to disregard the evidence of the choking.

At the outset, we have a question as to the sufficiency of Count 4 of the true bill, which reads:

'Terrell Eugene Golden, whose name is otherwise unknown to the Grand Jury, killed Derrell Golden by shooting him with a gun, said shooting being intentional and unlawful, but without malice.'

The Code form of indictment for voluntary manslaughter is:

'A. B. unlawfully and intentionally, but without malice, killed C. D. by stabbing him with a knife, etc. (or by striking him with a stick, etc., as the case may be).' (T. 15, § 259, No. 75.)

Golden claims that the modification of 'shooting' by the phrase, 'being intentional and unlawful,' is a fatal omission of the adverbs requisite to modify 'killed' as set forth in the Code form.

The Code forms of indictment do not preclude the use of other expressions. We consider this count as the equivalent of 'intentionally and unlawfully shot Derrell Golden to death.' Hence, we perceive no error of substance in attributing the quality to the quo modo rather than to the end product of what is a single transaction. This appears to be the purpose of Code 1940, T. 15, § 231, which provides:

'An indictment must not be held insufficient, nor can the trial, judgment, or other proceedings thereon, be affected by reason of any defect or imperfection in any matter of form which does not prejudice the substantial rights of the defendant on the trial.'

In Henry v. State, 33 Ala. 389, the killing was alleged to be only 'intentionally' done, which, of course, left the permissible implication that an intentional killing can still be lawful, e. g., in self defense. The Henry case does not govern here; nor does Mitchell v. State, 248 Ala. 169, 27 So.2d 36 (32 Ala.App. 467, 27 So.2d 30).

The defendant further claims it was error to his injury to admit over his objections testimony that prior to the fatal shooting he had (a) fired his shotgun into the ground near Mrs. Misseldine's back door and (b) asked his grandmother if she wanted him to shoot her cat. The claim of error is that neither incident was part of the res gestae because the deceased was shot several minutes later and at another place. Prejudice is alleged in that it tended to show defendant was 'trigger-happy.'

In Watson v. State, 22 Ala.App. 57, 112 So. 181, cited by defendant, it was harmful error to admit evidence of what a witness saw in a car or of what the occupants of the car were doing since this testimony was no part of the res gestae. However, in Smarr v. State, 260 Ala. 30, 68 So.2d 6, 10, we find the court saying:

'It was not error to permit Lucy Posey to testify as to what the accused said when she came to the Posey home on the day of the homicide. All the attendant circumstances leading up to and eventuating in the homicide form a part of the res gestae. Smith v. State, 253 Ala. 220, 43 So.2d 821; Collins v. State, 138 Ala. 57, 34 So. 993. In Jones v. State, 181 Ala. 63, 61 So. 434, it was said: 'The acts, declarations, and demeanor of an accused, before or after the offense, whether part of the res gestae or not, are admissible against him, but unless a part of the res gestae are not admissible for him.' 181 Ala. at page 78, 61 So. at page 439.'

There was no error here in so letting this testimony in.

James C. Martin, the coroner of Autauga County, an undertaker by profession, and a medical laboratory technician, was allowed to testify as to the cause of death of Derrell Golden, the deceased. The State adduced Martin's experience and professional qualifications (i. e., he had embalmed bodies of persons killed by gunshot wounds) so that we consider that there was no abuse of the trial judge's discretion shown on this record in permitting Martin to testify as to his opinion. Snead v. State, 251 Ala. 624, 38 So.2d 576; Webb v. State, 251 Ala. 558, 38 So.2d 340.

The defendant asserts that alleged threats and details of prior difficulties were erroneously related to the jury. He cites Henson v. State, 114 Ala. 25, 22 So. 127, as authority for reversal. We distinguish the evidence admitted here from that held offending in the Henson case which was a construction of the statute which allows (without evidence of malice aforethought) a conviction of either first or second degree murder for a killing committed with a concealed deadly weapon as is more fully set forth in Code 1940, T. 14, § 316.

The mother of the deceased was asked, 'What was the difficulty that the boy had?' No objection was made to this question. The defense moved to exclude the answer to which the court rejoined, 'Yes.' Thereupon it was moved that the court instruct the jury that it not be considered. The court then ruled:

'The Court: Yes the choking there, that part of it is excluded gentlemen. Where she said he began to choke him. That is excluded.'

The full answer referred to was:

'He said, 'I'll catch you off sometime by yourself and I will get even with you.''

The trial judge's ruling was correct.

As to threats such as, 'I'll catch you off sometime by yourself and I will get even with you,' the judge made it clear that difficulties prior to the death were admissible but not the details, and also that statements by the defendant to the deceased bearing on motive could go in. Wright v. State, 252 Ala. 46, 39 So.2d 395, supports the first view, and the second ruling is in accord with Jarrell v. State, 35 Ala.App. 256, 50 So.2d 767 (reversed on other grounds 255 Ala. 128, 50 So.2d 774; see also 255 Ala. 209, 50 So.2d 776). In McDonald v. State, 241 Ala. 172, 1 So.2d 658, 660, the court, per Brown, J., said:

'Testimony going to show motive, though motive is not an element of the burden of proof resting on the state, is always admissible. Brunson v. State, 124 Ala. 37, 40, 27 So. 410; Jones v. State, 13 Ala.App. 10, 68 So. 690.

'Therefore, the court did not err in allowing the witness Province, over defendant's objection,...