Hines v. State, 4 Div. 191

• Decision Date: 13 March 1973
• Docket Number: 4 Div. 191
• Citation: 277 So.2d 905,50 Ala.App. 161
• Parties: Max HINES v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 905

277 So.2d 905

50 Ala.App. 161

Max HINES v. STATE.

4 Div. 191.

Court of Criminal Appeals of Alabama.

March 13, 1973.

Rehearing Denied April 17, 1973.

Alice L. Anderson, Enterprise, for appellant.

William J. Baxley, Atty. Gen., and Don C. Dickert, Asst. Atty. Gen., for the State.

L. S. MOORE, Supernumerary Circuit Judge.

The appellant was indicted, tried and convicted in the Circuit Court of Pike County for the offense of murder in the second degree. His motion for a new trial was overruled by the trial court. Hence, this appeal.

The evidence on behalf of the State tends to show that Joseph Phillip Shultz, Jr., the victim of the alleged murder, and Ralph Paul Boehm and Ronald Dobson were in the military service and were stationed at Ft. Rucker; that on the night of February 12 or early morning of February 13, 1971, they proceeded in a car owned by and driven by Shultz to Bryant's Tavern located on Highway 231 in Pike County; that Shultz, the deceased, and Boehm got out of the car at the tavern and entered the tavern leaving Dobson asleep on the back seat of the car; that Boehm and Shultz drank some beer in the tavern and during the time they were in the tavern Shultz danced with a girl; that later Boehm missed Shultz and asked a group of people if anybody had seen the young G.I. that he came in with; that the defendant pushed through the crowd and told Boehm that his friend was 'outside cut up, or hurt, or something to that effect' and that if Boehm didn't 'get the hell out of there' he would get the same thing; that Boehm told the appellant that he did not come there looking for trouble; that Boehm went outside and finally found Shultz lying on his back on the traffic island between the parking lot and the highway; that Shultz did not say anything and did not move and that Boehm bent over him and could not hear him breath; that others helped Boehm get Shultz into the front seat of the car; that Dobson was still in he car and that Boehm drove the car and took Shultz to the hospital at Ft. Rucker; that on the way to the hospital Boehm stopped at Chisolm's Truck Stop to get gas for the car; that someone at the truck stop asked Boehm if he wanted them to call the M.P.'s on the post and he said, 'yes;' that the hospital people were at the door of the hospital when they arrived; that Boehm stopped the car at the hospital and they took Shultz out of the car; that Boehm never saw Shultz thereafter; and that Dobson was awake during the ride from Bryant's Tavern to the hospital.

Jowell Johnson, a witness for the State, testified in substance that he arrived at Bryant's Tavern about 10:30 on the night of February 12, 1971; that later the appellant and Billy Payne came into the tavern; that appellant danced with a girl named Sandy and was up at the bar talking to her when a soldier came up and asked her to dance with him; that she told him she did not want to dance and the soldier 'called her a name' and the appellant told the soldier if he had anything to say to say it to him; that the soldier asked the appellant outside; that the appellant had a knife and got off the stool at the bar and put the knife in his front pocket and he and the soldier went outside; that four or five minutes later the appellant came back into the tavern and took hold of the window shade and 'did something with it,' then put his hand in his pocket, came up to the bar and ordered a beer; that appellant told the other boy, 'Your buddy is outside and he is messed up a little bit and you will have some of the same;' that the boy said, 'No, No,' and went outside and discovered the man by the side of his car; that he told the boy who was looking for him that he was over there; that the boy asked for help in getting the man in the car; that he and the appellant and Billy Payne put the man in the car; and that there was another man in the back seat of the car.

Georgia Howell testified in substance that she was a licensed practical nurse; that she was at the hospital when Shultz was brought in; that she saw him as they were getting him out of the car; that she saw and examined him in the emergency room; that the only thing she could find on the body was a small wound on the chest; and that there were no bruises. This witness was shown a picture and asked if she recognized the person in the picture; and she testified that she could not do so.

The witness Boehm was recalled and he identified the person in the picture as being Shultz, the deceased; and stated that Shultz's body was in the same condition when they arrived at the hospital as it was when he left Bryant's Tavern with it.

Georgia Howell was recalled and testified that the wound shown on the body in the picture fairly represented the wound that she observed on the body of the deceased. The picture was admitted into evidence over objection.

Leon Hood testified in substance that Boehm stopped at his place, Chisolm Truck Stop, and got gas on the night in question; that in the car he saw the man who was hurt; that he called the M. P.'s at Ft. Rucker; that Boehm left in the car and a few minutes later the appellant came to his place and wanted to get a tire; that while the appellant was there, he, Hood, had a call from Ft. Rucker; that after that call he made the statement in the presence of the appellant and others in the truck stop that the man in the car must have been really stabbed; that the desk sergeant had just called him back and said that the man was very seriously injured or dead on arrival at the hospital and that the appellant said, 'You damned right he was stabbed. I stabbed him;' and that appellant had a small pocket knife and he said, 'This was the knife that stabbed him.' The appellant's objection to the admission of those statements by the appellant was overruled by the trial court.

The death certificate issued for Joseph Phillip Shultz, Jr., and the stipulation of the parties both entered into evidence shows that he died as a result of a stab wound. His death occurred on February 13, 1971.

The evidence introduced by the appellant in his behalf consisted in an effort to show that he acted in self defense. This evidence did show that the appellant and the deceased did have a fight outside the front door of Bryant's Tavern on the occasion in question. All of the testimony, that for the State and that for the appellant, tended to show that upon the appellant's being invited by the deceased to go outside the deceased went out of the building and was followed by the appellant. The evidence in this case reveals a state of fact out of which every element of the doctrine of self defense became a jury question which was resolved by the jury against the appellant.

The cause of death of the deceased was shown by substantial and admissible evidence and the appellant's complaint in that respect is without merit.

There was substantial evidence of the guilt of the appellant. Therefore, the appellant's requested affirmative charge was correctly refused. The ground of the appellant's motion for a new trial relating to the sufficiency of the evidence was correctly ruled on by the trial court in denying and overruling his said motion.

In Bradford v. State, 35 Ala.App. 407, 47 So.2d 599, the Court said:

'. . . (T)he principal point relied upon to effect a reversal of the judgment of conviction is the insufficiency of the evidence to support the verdict of the jury and to sustain the judgment of conviction.

'As above stated the evidence in the case was for the jury to consider and determine, and to sustain the contention insisted upon by the defendant and put the court in error, would necessitate in effect substituting ourselves for the trial court and the jury, and this we are without authority to do. The trial court and the jury saw and heard the witnesses and were in every way better able to decide this controlling question than this court could possibly be.'

In Blue v. State, 246 Ala. 73, 19 So.2d 11, the rule is stated in this manner:

'But it is equally true that where there is evidence of a substantial nature tending to establish the material issues of the case, then the affirmative charge should be refused . . .'

In the case at bar appellant complains that the witness, Hood, was permitted to testify to hearsay, over the objection of appellant, when he was allowed to state that at his place of business on the night in question he made the statement in the presence of the appellant that, 'The desk sergeant had just called back and said that the man was very seriously injured or dead on arrival at the hospital.' This brought on the appellant's statement in which he said, 'You damned right he was stabbed. I stabbed him.' The evidence complained of is not hearsay. Hood was merely relating to the appellant what someone else told him. It thus became a part of his conversation with the appellant. Manassa v. State, 47 Ala.App. 287, 253 So.2d 356.

Appellant complains that the trial court erred in admitting the testimony of the witness Hood in stating the confession of the appellant, namely, 'You damned right he was stabbed. I stabbed him.' The appellant's objection to the admission of this evidence on the ground that no predicate had been laid was overruled by the trial court.

The evidence in this case clearly shows that at the time and place said statement was made by the appellant, he was with friends and acquaintances; that Hood operated the truck stop and was in the process at that time of doing a favor for appellant in connection with fixing a tire for him, which was not something he usually did for customers; that appellant had previously worked as an employee of Hood; that no officer was present; that appellant had not been questioned concerning the offense and had not been accused by anyone present of having committed it; that the entire conversation was related and there was a complete absence in it of any threats, coercive influence or anything which would...