Hudson v. State, 3 Div. 384
Decision Date | 04 November 1975 |
Docket Number | 3 Div. 384 |
Parties | Gayle August HUDSON v. STATE. |
Court | Alabama Court of Criminal Appeals |
Charles Tom Payne, Montgomery, for appellant.
No brief from the State.
Hudson, convicted of assault with intent to murder with a sentence of twenty years in the penitentiary, brings this appeal.
On the night of August 11, 1974, Hudson stopped Leon Vinson to ask for directions to get from North Court Street in Montgomery to Interstate Highway 85-North. Vinson told Hudson, who was accompanied by another man and a woman, to follow his car, that he was going that way.
After the two cars had gone some distance, Hudson blinked his lights and honked his horn. Vinson stopped; Hudson walked up to his car, presented a gun and said, 'Get out, this is a holdup.'
While Vinson stood beside his car with his hands in the air of off-duty Montgomery police officer, Charles Hamilton, drove up. Seeing Vinson's plight, he stopped and told the trio, 'This is the police.' One of the two men manoeuvered into the darkness in such a way that Hamilton got caught in the beams of his car's headlights. Then the other man--Hudson--fired at him. The first shot (which went into his chest) knocked Hamilton to the ground. The second hit him in the leg.
Hamilton returned the shots and Hudson was hit in the hand.
In the course of Hamilton's testimony we find:
'Q Were you taken to a hospital?
'A No, sir. I went, but I wasn't taken.
'Q How did you get to the hospital?
'Q How did you get to the hospital, Charlie?
'A I drove to the hospital.
'Q You drove yourself?
'A Yes, sir.
(R. 64)
The detailed evidence of Hamilton was a recital of how he had gone to a gate of Gunter Air Force Base, inexplicably was denied help, and had to drive himself, with one lung filling with blood, to Jackson Hospital where he finally got medical attention.
On appeal counsel contends that the circuit court erroneously denied his motion for a charge of venue because of newspaper and television publicity as to Officer Hamilton having been chosen Police Officer of the Year by the Montgomery Exchange Club in February, 1975.
Trial was had February 27, 1975, more than six months after Hamilton was shot. Under Mathis v. State, 52 Ala.App. 668, 296 So.2d 755; Mathis v. State, 52 Ala.App. 674, 296 So.2d 760 and Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 we find no error. See Bloodworth, J., Mathis v. State, 292 Ala. 372, 296 So.2d 764.
We do not have the benefit of a brief from the State because the Attorney General has moved us to remand this cause for determination of a Youthful Offender petition which was filed in the trial court, but not acted on accoridng to the record certified to us by the circuit clerk. Since under T. 15, § 389 we perceive reversible error, the Youthful Offender matter can be taken up aliud examen.
Jury trials require screening of evidence by the trial judge. This screening is confined to admissibility, not weight: the test being whether the inquiry seeks facts throwing light on the transaction. Nelms v. Steiner Bros., 113 Ala. 562, 22 So. 435 (Brickell, C.J.). Undue multiplication of issues is to be guarded against as tending to divert the minds of the jurors from the main issue. See Stone, J., in Mattison, 55 Ala. 224.
In a criminal case the rule of relevance is more strictly applied than it is in civil trials. Pressley v. State, 18 Ala.App. 40, 88 So. 291; Browning v. State, 31 Ala.App. 137, 13 So.2d 54; Wilbanks v. State, 42 Ala.App. 39, 151 So.2d 741.
The Alabama statutory crime of assault with intent to murder embraces the animus of the common law crime of murder, i.e., the killing of a rational (i.e., human) being with malice aforethought. Code 1940, T. 14, § 38. Simpson v. State, 59 Ala. 1; Johnson v. State, 42 Ala.App. 511, 169 So.2d 773. Thus, in assault with intent to murder, the State need not burden itself with proving all the mental elements of statutory first degree murder.
-- Bowen v. State, 32 Ala.App. 357, 359, 26 So.2d 205, 206
Thus, in Brown v. State, 142 Ala. 287, 38 So. 268, the duration of the confinement of the assaulted party was held material on intent (vel non) to Kill. 1 Beck v. State, 240 Ala. 19, 197 So. 43.
In these cases the extent of the victim's wound is an admissibl enquiry because testimony thereabout may shed light on the severity of the alleged attack. Anno. 87 A.L.R.2d 926; Bryant v. State, 31 Ala.App. 355, 17 So.2d 427.
The testimony of Officer Hamilton as to his going to the gate of Gunter Air Force Base and having to drive himself to Jackson Hospital in nowise came within the scope of res gestae as shown in Stuart v. State, 244 Ala. 434, 14 So.2d 147, and Guntharp v. State, 54 Ala.App. 363, 308 So.2d 722. 2 Nor do we consider that this proof related to the infliction or gravity of the wound, other than to show remarkable stamina and will to live on the part of Officer Hamilton.
In this case we consider that the opinion in Phillips v. State, 161 Ala. 60, 49 So. 794 (per Sayre, J.) is controlling. We quote in part:
(Italics added.)--161 Ala. at 64, 65, 49 So. at 796
This testimony, with its Kafkaesque bureaucratic bumbling to frustrate binding wounds of a man who had been set upon by thieves, could only have prejudiced the jury against the appellant as the prime cause of Hamilton's misery. But it sheds no light on the issues framed by the plea of not guilty and the indictment.
The court below allowed ...
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