Golson v. State

• Decision Date: 05 April 1949
• Docket Number: 6 Div. 564.
• Citation: 40 So.2d 725,34 Ala.App. 396
• Parties: GOLSON v. STATE.
• Court: Alabama Court of Appeals

40 So.2d 725

34 Ala.App. 396

GOLSON v. STATE.

6 Div. 564.

Alabama Court of Appeals

April 5, 1949

Rehearing Denied May 3, 1949.

Beddow & Jones and G. Ernest Jones, Jr., all of Birmingham, for appellant.

A A. Carmichael, Atty. Gen., and Thos. F. Parker, Asst. Atty Gen., for the State.

HARWOOD, Judge.

This appellant has been convicted of manslaughter in the first degree, and her punishment fixed at imprisonment in the penitentiary for a term of five years. The indictment on which she was tried charged murder in the first degree.

The victim of this killing was appellant's husband.

It is clear from the record that the ultimate tragedy about which this case centers was the culmination of years of marital disharmony.

In the trial below the defendant entered a plea of not guilty, and not guilty by reason of insanity.

The killing occurred in the home occupied by appellant and deceased, and their twin daughters, four years of age.

Other than the appellant there were no eye witnesses. Beyond the undisputed fact that appellant did shoot the deceased, firing some six shots, the State was compelled to rely on circumstantial evidence to establish the elements of the offense for which appellant was convicted. That these elements were so established is abundantly clear.

The evidence presented by the State tended to show that the appellant in October 1946 had inquired of two lady employees in an insurance office concerning the double indemnity clause in an insurance policy on the life of her husband, and had then stated 'My mother is a corpse at Rideout's now and he is out with another girl, and I can't stand it.'- In November, 1946, appellant bought a pistol.

In the latter part of November, 1946, the appellant told Mrs. Julian Ribera, an acquaintance, that she had a gun, and, according to Mrs. Ribera, 'She said no jury in the world would convict her of murder if they found out the way he was running around with that slut. She said, 'All I would get would be five or maybe ten years, and with two, or three years off for good behavior, I would be out in no time, and that girl couldn't get him.' But she was hysterical.'

About two weeks before Easter, 1947 Mrs. Ribera again saw appellant and asked if things were any better at home. Appellant began crying and replied 'I just worship the big lug. Sometimes I think I would rather shoot him than give him up.'

J. H Mitchell, a police officer of the City of Homewood, was one of the principal witnesses for the State. He arrived at the Golson home shortly after the shooting, in response to a message received on his patrol car radio.

Upon entering the house officer Mitchell found the deceased lying on the floor of the dining room, near a door leading to the kitchen. The appellant was kneeling near his head and rubbing it. The deceased was asking for something to 'knock him out,' and appellant went to look for some medicine or drug, but was informed by the officer she could not administer such. The appellant then asked deceased if he would forgive her, and deceased replied: 'I forgive you of everything. It is all my fault. I have brought this on.'

An ambulance arrived in a few minutes and the deceased was removed to a hospital.

Officer Mitchell stated that he found an ottoman in the hallway overturned, a rug in the dining room disarranged and ruffled up, and some broken glass from a frameless picture on the floor of the hallway in the vicinity of the telephone. There were also some small splatters of blood in the hallway, and also in the kitchen and breakfast room.

Appellant told officer Mitchell that the deceased had chased her all over the house before she shot him, and pointed out to him route their melee had taken. When questioned as to the broken glass the appellant said she had at one time tried to call her father over the telephone, and deceased had taken a frameless glass picture from a cabinet nearby and hit her with it. She had then tried to place the ottoman in his path to trip him. Appellant had gone into the kitchen, and had shot deceased as he was 'right on her.'

Officer Mitchell gave further testimony as to the location of bullet holes or scars in the walls, and on the refrigerator.

We will observe here, in connection with a later occurrence in regard to officer Mitchell, that in so far as is disclosed by a careful reading and consideration of his testimony, nothing is reflected by this record in any way indicating that this police officer was in anywise an unwilling or hesitant witness, but on the other hand it appears that he answered, or attempted to answer fully and clearly all questions propounded to him.

For the defense the appellant testified in her own behalf. Her testimony tended to show that the marriage between her and the deceased had been an unhappy alliance for years. The deceased had on more than one occasion committed physical violence on her, and had engaged in frequent affairs with other women.

On the day of the homicide the deceased came home shortly before 3:00 P.M. Appellant was seated in the kitchen preparing some trinkets to go in the Easter baskets of the twin daughters. She was using a pair of scissors in this connection.

Appellant requested the deceased to take the twins to an Easter party that afternoon. The deceased at first refused, but later reluctantly agreed to do this.

Upon deceased's return from this errand the appellant took the trinkets and scissors and sat at the table with him while he ate a lunch. Thereupon a conversation ensued in which deceased asked appellant: 'Well, why don't you raise some hell with me because I was Late?' 'Why don't you want to know where I have been?' to which appellant replied: 'I don't have to ask.'- Further conversation ensued in which deceased again asked appellant why she did not raise hell and ask him where he had been, and to which appellant replied that she knew. Deceased replied that appellant was damn right, that he had been out with Barbara, and was going when he wanted to.

Appellant testified that at this point deceased reached across the table, took her by the wrist, and stated, 'Well, I still want that divorce.' Upon her replying there would be no divorce, they were going to make the best of it, deceased replied: 'You won't have to, I am going to kill you right now.' Deceased then picked up the scissors with his free hand. Appellant jerked loose and ran into the hall, stating she was going to call her father. The deceased followed her, caught her dress and tore it, and told her: 'You won't have to call him, I am going to kill you right now.'

Appellant claims when she reached the phone she picked up the frameless glass picture from a nearby stand, and attempted to protect herself from deceased's assault with it. The deceased continued hitting her, breaking the glass with the scissors. Appellant replaced the phone and backed toward the kitchen, the deceased following her and continuing his threats. After entering the kitchen appellant took the gun from a drawer in a cabinet, turning around and fired it without aiming and with her eyes closed.

Other evidence was presented by both the State and the defense. We have not set it forth because the above we think is background sufficient for the purpose of this opinion.

We come now to a consideration of the action of the Solicitor in recalling for further examination the State's witness, officer H. L. Mitchell, pertaining to his conduct in permitting defense counsel to see and read the report of his investigation made by him to the Solicitor's office.

No surprise was pleaded by the Solicitor prior to his reexamination of this witness. Actually, however, this reexamination was in the form of a rather severse cross examination. We pretermit considering the question in its aspect of an unwarranted cross examination of one's own witness, however, for in our opinion this procedure in its broader aspects created a prejudicial atmosphere against the defendant and her counsel probably materially injurious to her cause.

Upon this redirect examination Mr. Mitchell first identified a paper handed to him as being a copy of the written report of his investigation, made by the witness and a Mr. McDuff. He then testified that he had let Mr. Beddow of defense counsel see this report.

There then ensued a series of questions, objections, answers, and colloquy between respective counsel, and the court, covering some 10 or 11 pages of this record.

The following excerpts are quoted to illustrate our conclusions hereinafter reached:

'Q. I will ask you, did you give your copy of this report to Mr. Beddow, the attorney for the defendant? A. I let him have it, yes, sir.

'Q. When? A. Saturday.

'Q. Is that customary in a case of this kind?

'Mr. Beddow: We object to that. It is just as much our right to see a copy as it is anybody else's right. We have a right to prepare a defense as they have prepare a prosecution.

'The Court: Wait a minute.

'Mr. Beddow: We object to it. It calls for a conclusion. It calls for illegal, irrelevant, incompetent, and immaterial testimony, and he is attempting to make it appear that there was something wrong one way or the other.

'The Court: Read the question, Mr. Williams.

'(Thereupon the Court Reporter read the last question propounded as above recorded.)

'The Court: Answer it.

'A. I don't know.

'The Court: Anything further?

'Mr. Jordan: Yes, sir.

'Q. I would like to know if you had any interest in this case? A. Nothing in the world, other than justice to be had, one way or the other, for all.

'Mr. Beddow: That is his business. A. No interest.

'Mr. Jordan: It is supposed to be.

'The Court: Both of you are out of order. It would be just as easy to do it right. Anything...