Haygood v. State

• Decision Date: 20 January 1949
• Docket Number: 6 Div. 762.
• Citation: 38 So.2d 593,252 Ala. 3
• Court: Alabama Supreme Court
• Parties: HAYGOOD v. STATE.

38 So.2d 593

252 Ala. 3

HAYGOOD v. STATE.

6 Div. 762.

Supreme Court of Alabama

January 20, 1949

Rehearing Denied Feb. 17, 1949.

Appeal from Circuit Court, Jefferson County; Robt. J. Wheeler Judge.

Josh Mullins, Jr., of Birmingham, for appellant.

A. A. Carmichael, Atty. Gen., and Wm. N. McQueen Asst. Atty. Gen., for the State.

The following charges were refused to defendant:

'31. The court charges the jury that the test of sufficiency of circumstantial evidence in a criminal case is whether the circumstances as proven are capable of explanation upon any reasonable hypothesis consistent with the defendant's innocence, and, if they are capable of any such explanation, then the defendant should be acquitted.'

'33. The court charges the jury that the probability that some other person may have done the shooting is sufficient to create a reasonable doubt of the guilt of the defendant, and therefore for his acquittal.'

'37. The court charges the jury that if they believe from the evidence the only evidence tending to corroborate the testimony of Jack 'Black Jack' Sims that tends to connect the defendant with the commission of the offense is the testimony of McKinley Burnett, and if the jury do not believe the testimony of McKinley Burnett to be true they must find the defendant not guilty.'

'38. The court charges the jury that if they believe from the evidence the only evidence tending to corroborate the testimony of Jack 'Black Jack' Sims that tends to connect the defendant with the commission of the offense is the testimony of McKinley Burnett and Officer Thorn, and if the jury do not believe the testimony of Officer Thorn and McKinley Burnett to be true, they must find the defendant not guilty.'

'40. The court charges the jury that if a conviction in this case depends upon the testimony of any two witnesses; and if the jury have a reasonable doubt as to the truthfulness of those two witnesses, they cannot convict the defendant.'

'41. The court charges the jury that if a conviction in this case depends upon the testimony of any three witnesses; and if the jury have a reasonable doubt as to the truthfulness of those three witnesses, they cannot convict the defendant.'

'55. The court charges the jury that defendant cannot be convicted upon the testimony of Jack 'Black Jack' Sims unless that testimony is corroborated by the testimony of other witnesses tending to connect the defendant with the commission of the offense with which he is charged, and that unless you believe from the evidence beyond a reasonable doubt that McKinley Burnett have testified truthfully in this case you cannot find the defendant guilty.'

'56. The court charges the jury that defendant cannot be convicted upon the testimony of Jack 'Black Jack' Sims unless that testimony is corroborated by the testimony of other witnesses tending to connect the defendant with the commission of the offense with which he is charged, and you, gentlemen of the jury, in your discretion may determine the strength of the evidence tending to connect the defendant with the crime named in the indictment.'

STAKELY Justice.

The appellant Perry Lee Haygood, alias Kemp Perry, was indicted, tried and convicted of murder in the first degree. His punishment was fixed at death by electrocution. This appeal comes to this court under the automatic appeal act. General Acts of 1943, p. 217 et seq., Code 1940, Tit. 15, § 382(1) et seq.

Jack Sims, witness for the state, by his own admission was an accomplice of appellant and like appellant has also been indicted for the murder of W. J. Trotter, deceased. According to his testimony, on Monday, February 2, 1948, at about 7.15 to 7.20 A.M. by prearrangement with the appellant, he met appellant at the corner of 10th Avenue and 17th Street in the City of Birmingham. They then proceeded to the store of W. J. Trotter at the corner of 18th Street and 10th Avenue in the City of Birmingham. The store was a small delicatessen store. After ordering two chocolate milks, a box of crackers and two cans of sardines, they consumed part of this food and then according to the testimony of Jack Sims, appellant stated to the deceased that this was a stick-up and thereupon shot him through the head and in the body causing his death. Jack Sims thereupon ran out of the store, leaving appellant in the store.

The balance of the testimony introduced by the state tended to show the following. According to the wife of deceased, deceased left his home about 20 minutes after seven A.M. to go to his delicatessen store, which was two or three blocks from his home. He took with him some money which represented the proceeds of sales at the store which he had kept the preceding night under a rug in the house. His wife learned of his death about 20 minutes after eight A.M. on the same morning.

Appellant, another man and Trotter were seen in the store of Trotter by McKinley Burnett who passed by on the sidewalk between 7:30 to 8:00 A.M. on his way to school. Appellant with another man was also seen in the vicinity of the store at 7:00 to 7:10 A.M. by A. R. Peeler, store manager of Hill Grocery Co. According to experts of the Identification Bureau of the Police Department of the City of Birmingham finger prints were found on the box of crackers which was on the counter of the store at the time the officers arrived and the contents of which had been partly consumed. These finger prints matched the finger prints of appellant. The officers also found on the counter two milk bottles with chocolate milk in them, about half full and also one can of sardines. Another can of sardines was in the can opener on the wall. Three bullets were discovered in the store or in the body of the deceased, all of which were of a size suitable to a pistol described as .38 special. A .38 special pistol was introduced in evidence and the appellant admitted that it was his own pistol. The proof showed that on the day of the homicide or the day after the appellant pawned a .38 special pistol. The police redeemed it for $25 and this is the pistol which was introduced in evidence. No money was found by the police on the body of deceased. Only a one dollar bill in a record book and a few cents contained in a jar were found in the store. $69 and a few cents were found on the person of appellant when he was arrested. On the morning of February 2, 1948, appellant went to a clothing store nearby in the City of Birmingham and purchased a suit for $77.43. He made a down payment of $50. This amount was paid in bills and in nickels, dimes and quarters to the extent of $8.

The appellant testified that, unaccompanied by any one, he went to the store of Trotter on the morning in question at about 7:10 to 7:15 and purchased some milk, crackers and sardines. He left the bottle of milk there but was not sure whether he left half a box of crackers and half a box of sardines. According to his testimony he was in Trotter's store five or six minutes. He denied, however, that he shot the deceased or took any money from the person or store of the deceased and according to his testimony he procured the money which he had in his possession and with which he made the cash payment for his suit by gambling with some of his friends and acquaintances. He testified that he went to the clothing store kind of early from Trotter's store, a distance of six or seven blocks. He denied that he had any agreement with Jack Sims for any kind of a deal and testified that he was in another part of the City of Birmingham at the time the homicide was committed.

Reversal is sought on a number of grounds which will be considered in the order in which they have been presented to us.

I. It is earnestly insisted that the court was in error when the court made a preliminary examination of Jack Sims, witness for the state. The alleged error lies in the manner in which the witness was questioned by the court. We set out the pertinent part of the transcript as follows.

'Q. What is your name? A. Jack C. Sims.

'Q. Jack, do you want to testify in this case? A. Yes sir.

'Q. You want to tell the truth about it? A. Yes sir.

'Q. You understand that any testimony you might give of course might be used against you in your own case? You understand that? A. Yes sir.

'Q. Do you want to tell the truth about it and tell it all, is that what you want to do? A. Yes sir. * * *.'

There was no objection or exception to the action of the court, but it is contended that such objection or exception is not necessary for review here because of the provisions of the automatic appeal act which reads as follows:

'In all cases of automatic appeals the appellate court may consider, at its discretion, any testimony that was seriously prejudicial to the rights of the appellant, and may reverse thereon even though no lawful objection or exception was made thereto.'--§ 382(10), Title 15, Code of 1940, Pocket Part.

The purpose of objection and exception is to challenge the correctness of the action of the court so that such action may be corrected by the court itself, if deemed erroneous and to lay the foundation for review, if necessary, by the appellate tribunal. Without such objection and exception, the trial court ordinarily has the right to assume that its action is acquiesced in and free from error....