Hyche v. State, 6 Div. 256

• Court: Alabama Court of Appeals
• Writing for the Court: BRICKEN, P.J.
• Citation: 113 So. 644,22 Ala.App. 176
• Parties: HYCHE v. STATE.
• Docket Number: 6 Div. 256
• Decision Date: 30 June 1927

113 So. 644

22 Ala.App. 176

HYCHE
v.
STATE.

6 Div. 256

Court of Appeals of Alabama

June 30, 1927

Rehearing Denied Aug. 2, 1927

Appeal from Circuit Court, Walker County; R.L. Blanton, Judge.

Rehearing denied; Rice, J., dissenting.

Lee Hyche was convicted of murder in the second degree, and he appeals. Affirmed. [113 So. 645]

L.D. Gray and J.B. Powell, both of Jasper, for appellant.

[22 Ala.App. 177] Charlie C. McCall, Atty. Gen., for the State.

BRICKEN, P.J.

This appellant was indicted for murder in the first degree, and was convicted of the offense of murder in the second degree; his punishment being fixed by the jury at imprisonment in the penitentiary for twelve years. Judgment of conviction was duly pronounced and entered, from which this appeal was taken.

The appeal here is rested upon certain exceptions reserved to the rulings of the court upon the admission of evidence.

There appears but slight conflict in the evidence. That Jim, alias James, Tuggle, the deceased named in the indictment, was shot with a gun loaded with buckshot, and killed by this defendant, is not denied. Tuggle, the deceased, was a brother in-law of this defendant, and it clearly appears that for some years prior to the killing these parties were not on friendly terms.

It appears from the evidence that the deceased was seen by the defendant coming down the road in a two-mule wagon, about 100 yards from defendant's home; that thereupon defendant went into his house, procured his double barrel shotgun, one barrel of which could not be fired because of a broken or defective plunger; that he came out to the road and fired upon Tuggle, who fell to the ground at the first fire; that thereupon the defendant took the shell out of the useless barrel, loaded the other barrel with it, and, while the deceased was lying upon the ground as a result of the first shot, he shot him again, left the body in the road, and went to the sheriff some three and a half miles away, and gave up. There was one eyewitness to the second shot, one Tom Trice, who testified for the state. But slight, if any, conflict appeared in the testimony given by this witness and the statement made by the defendant relative to the shooting. The defendant testified as to the particulars, and gave some evidence of an overt act upon the part of the deceased just prior to the shooting. He testified:

"He stated he (Tuggle) jumped out of the wagon and come running around the mules like, when he started he come around with his hand in his hip pocket, or behind his back; I didn't see any weapon."

Several exceptions were reserved to the court's rulings in permitting the state to prove by its several witnesses, who were the first parties to reach the body, that they made search for weapons near and on the body of deceased, and that they found nothing in the nature of a weapon except a small pocket-knife, and that was in the deceased's pocket, and was closed. All this was a proper inquiry, and the rulings were without error. The evidence sought and adduced tended to shed light upon the facts and circumstances of the killing, which was admitted. Its weight or probative force was for the jury.

The confessions of the accused were properly admitted, as full and ample predicates were laid, and it clearly appears that the confessions were wholly voluntary.

There was evidence of repeated threats against the defendant by the deceased and of mistreatment of the defendant by Tuggle upon several former occasions. The court allowed defendant much latitude in this connection, and, if error there was in the court's rulings, they were favorable to defendant, and he could not complain.

The controlling point of decision in this case, and manifestly the ruling upon which appellant relies principally for a reversal, is wherein the court permitted the state, over the timely objection of defendant, to introduce in evidence the coat and shirt which was worn by the...