Harris v. State, 8 Div. 376

• Decision Date: 07 October 1980
• Docket Number: 8 Div. 376
• Parties: Thomas Glenn HARRIS v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1063

395 So.2d 1063

Thomas Glenn HARRIS v. STATE.

8 Div. 376.

Court of Criminal Appeals of Alabama.

Oct. 7, 1980.

Rehearing Denied Jan. 20, 1981.

W. H. Rogers, Moulton, for appellant.

Charles A. Graddick, Atty. Gen., and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.

LEIGH M. CLARK, Retired Circuit Judge.

A jury found appellant guilty of murder in the first degree of Flora Dean Polk by shooting her with a shotgun and fixed his punishment at imprisonment for life. He was sentenced accordingly.

Appellant's first assertion of error is to the effect that the court erred in denying defendant's motion for a new trial for the reason that at the time the alleged crime was committed there was no crime of murder in the first degree in Alabama, that such crime had been abolished and repealed by Act No. 607, Acts of 1977, which has become the Criminal Code of Alabama, Title 13A, Code of Alabama 1975. It is correct that Acts 1977, No. 607, did purport to provide that upon the effective date of that Act, any crime that theretofore constituted murder in the first degree, as well as some other designated and defined unlawful homicides, constitutes murder and is punishable "by imprisonment in the penitentiary for not less than 10 years to life." The particular cited Act also provided that its effective date was May 17, 1978. However, by Acts 1978, No. 770, p. 1110, § 1, the effective date was changed to June 1, 1979, and by Acts 1979 No. 79-125, the effective date was again changed to January 1, 1980.

The undisputed evidence shows that the alleged crime was committed in October 1979, at which time the present Criminal Code had not gone into effect. Defendant was properly indicted and tried for murder in the first degree, as well as any lesser included offense, pursuant to the previously existing statutory law as contained in Code of Alabama 1940 (Recompiled 1958) § 314. Appellant's contention in this respect cannot be sustained.

The evidence is entirely circumstantial as to the commission of the alleged crime and defendant's participation therein, but it is substantial and strong as to both. There is no contention that it is not sufficient to justify submission to the jury of the issue as to defendant's guilt, except in one particular as to an alleged variance to be discussed hereafter, and except as it is found in appellant's argument that the evidence can be reasonably reconciled with the theory that some other person or persons may have committed the crime and for that reason the evidence was not sufficient. Such contention will also be discussed hereafter. No useful purpose would be served by a lengthy narration of the evidence. A meager summary is sufficient.

The alleged victim was the mother of defendant's wife. The victim was killed on the night of October 27-28, 1979. Defendant's wife was in Oklahoma at the time. There had been extremely hard feelings between them. Living with the victim in Moulton, Alabama, were four children of defendant's wife. Defendant had no children. Before midnight October 27-28, 1979, defendant and Lewis Goode came to the house where the victim and the four children were living and entered the house. There was testimony by witnesses for the State to the effect that defendant had a shotgun with him and demanded to know where his wife was and that the victim told him that she did not know. He searched the house and did not find his wife. One of the witnesses testified:

"A. And they took her (the alleged victim) outside in the middle of the road, and she was screaming and hollering. And she said, 'Thomas, please don't shoot me.' and

"Q. Well, had Thomas said he was going to shoot her?

"A. He had the gun pointed at her.

"Q. Thomas had the gun pointed at your grandmother?

"A. Yeah."

According to further testimony of the witness, the wife of Lewis Goode was sitting in an automobile parked near the house at the time. After defendant and Goode had taken his grandmother out of the house, they came back in and the following occurred:

"A. He said, 'I am going to count to three, and if you don't tell me where she is at, I am going to shoot you.' and he got to two and she my grandmamma said that she was down at Willie Pearle's.

"Q. Who was he asking about, who was?

"A. Thomas was asking where Jessie Pearle was.

"Q. You said Thomas was holding the gun; how was he holding it?

"A. He was point it at her.

"Q. He had the gun pointed at your grandmother?

"A. Yes.

"....

"Q. You said that after that they left, that is, your grandmother and Thomas and Lewis "A. And Lewis.

"....

"Q. And then what happened?

"A. And we told Emmitt and he went and told Wamon and and then they called the police, and that is all."

Law enforcement authorities were notified promptly. The body of the victim was found about 5:30 A.M. on October 28, on a side road near some trees. A forensic pathologist testified that her death was caused by shotgun wounds. The previously mentioned shotgun was found about 7:00 A.M. lying in a ditch. There was expert testimony that the shots that killed the victim were fired from the mentioned gun. Defendant, testifying in his own behalf, denied killing the victim. He admitted that he had been on a spree looking for his wife, that he had been drinking a great deal of beer and that he had been with Lewis Goode and his wife a large part of the first half of the night of October 27-28, 1979.

Appellant's second assertion of error is directed to the action of the court in overruling defendant's objection to questions asked Attorney Jimmy Speake, a witness called by the State, as to what the alleged victim stated to the witness on two occasions about two weeks prior to her death, as shown by the following part of the transcript:

"Q. Did you have a conversation with them (the victim and defendant's wife) on that date?

"A. Yes, sir.

"Q. And did you have another conversation with Mrs. Polk later, two or three or four days later?

"A. Yes, sir, the following Monday on the 15th.

"Q. Okay. Now, referring to the conversation on the 13th, did Mrs. Polk relate to you any information concerning herself and her son-in-law, Thomas Harris?

"A. She was in my office

"MR. ROGERS: Judge, we are going to object to this line of testimony as being remote and immaterial and irrelevant, and the comments and transactions as took place out of the presence of the Defendant.

"THE COURT: Well, I take it that you are offering this to show prior difficulties between

"MR. LITTRELL: Prior difficulties and motive.

"THE COURT: All right, overruled.

"MR. ROGERS: We take exception.

"BY MR. LITTRELL:

"Q. With reference to the conversation on October 13th with Mrs. Polk, and I believe her daughter was also present, what, if any information, was related to you concerning Mrs. Polk in her relation with her son-in-law by Mrs. Polk?

"MR. ROGERS: Judge, I object on the basis that it's hearsay, and the statements are all outside the presence of the defendant.

"THE COURT: All right, you can confine it. You will have to phrase your question different, not with reference to details, but just what the transaction was.

"MR. LITTRELL: All right.

"BY MR. LITTRELL:

"Q. Mr. Speake, did Mrs. Polk relate to you any information concerning a threat by her son-in-law, Harris, to herself?

"A. Yes, sir.

"Q. Would you tell us what it was?

"MR. ROGERS: We object, Your Honor.

"THE COURT: Sustained. You can't go into the details.

"MR. LITTRELL: Judge, may we approach the bench just a minute.

"THE COURT: Yes.

"(WHEREUPON MR. LITTRELL AND MR. ROGERS APPROACHED THE BENCH AND AN OFF-THE-RECORD DISCUSSION WAS HAD AFTER WHICH THE FOLLOWING OCCURRED)

"BY MR. LITTRELL:

"Q. What was the nature of the threat, Mr. Speake?

"MR. ROGERS: Judge, we object on the basis of being hearsay, statements made outside the presence of the Defendant, and that it's inflammatory and prejudicial.

"THE COURT: Overruled.

"MR. ROGERS: We take exceptions.

"A. Mr. Littrell, I do not specifically and independently recall the nature of the threat conveyed to me by Dean Polk on the 13th.

"Q. Okay. Then let's go to the 15th, the conversation that you had with her; was her daughter present then?

"A. No, sir.

"MR. ROGERS: Judge, we at this time move to exclude all of the statements and questions by the District Attorney made on the 13th of October to Mr. Speake.

"MR. LITTRELL: Judge, I believe his answer was that he remembered that she had communicated to him information concerning threats by her son-in-law.

"THE COURT: Overruled.

"MR. ROGERS: We take exception.

"Q. Go to the 15th, please sir.

"A. All right, sir. On the morning of the 15th she came into my office alone. Her daughter was not

"MR. ROGERS: Judge, we are going to object on the same basis, as hearsay, and statements made outside the presence of the Defendant, that it's inflammatory and prejudicial, and it's remote and irrelevant.

"THE COURT: All right. Overrule. You can just state the nature of what was said.

"MR. ROGERS: We take exception.

"A. She asked me to give her information or assistance where she could obtain immediate protection. In the context of the conversation on the 13th she said in substance, as I recall, that 'he will kill us.'

"Q. To whom was she referring?

"A. To that Defendant.

"Q. All right.

"MR. LITTRELL: That's all. Thank you.

"MR. ROGERS: I don't have any questions Judge."

Thereupon the witness was excused.

"Statements and declarations of a deceased are not competent evidence for or against an accused in a murder prosecution unless made in his presence, or unless they are admitted in evidence as part of the res gestae or constitute dying declarations. Kitchens v. State, 251 Ala. 344, 346, 37 So.2d 428 (1948); Holland v. State, 162 Ala. 5, 11, 50 So. 215 (1909); Hill v. State, 339 So.2d 1077, 1080 (Ala.Cr.App.), cert. denied, 339 So.2d 1082 (1976). See also Reaves v. State, 158 Ala. 5, 48 So. 373 (1909); Lakey v. State, 18 Ala.App. 442, 93 So. 51 (1922)." Hargrove v. State,...