Jackson v. State

• Decision Date: 26 January 1933
• Docket Number: 6 Div. 231.
• Citation: 226 Ala. 72,145 So. 656
• Parties: JACKSON v. STATE.
• Court: Alabama Supreme Court

145 So. 656

226 Ala. 72

JACKSON v. STATE.

6 Div. 231.

Supreme Court of Alabama

January 26, 1933

Appeal from Circuit Court, Jefferson County; J. Russell McElroy Judge.

Charlie Jackson was convicted of murder in the first degree, and he appeals.

Reversed and remanded.

The following charge was refused to defendant: "17. The court charges the jury that no matter how strong may be the facts, if they can be reconciled with the theory that some other person may have done the act, then the guilt of the defendant is not shown by the full measure of proof which the law requires."

Further facts are stated by BROWN, J.:

The appellant was tried and convicted of murder in the first degree and his punishment fixed at death.

The evidence offered by the state to prove the corpus delicti goes to show that on the night of May 24, 1930, at about 10 o'clock p. m., an attempt was made to rob the deceased by a man dressed in striped overalls and a black shirt masked with a red handkerchief over his face; that the overalls were of the same kind in general as those worn by Tom O'Neal, one of the state's witnesses, and Hatchett, both employees of the Blue Ribbon Oil Company; that W. T. Smith, the deceased, was in the act of closing his place of business, a gasoline filling station operated by the Blue Ribbon Oil Company at 4306 First Avenue North, in the city of Birmingham, under the management of Smith; that just as Smith had closed and locked the door the man approached Smith with drawn pistol and ordered him to hold up his hands that Smith seemed to recognize the man and called his name "Charlie," grappled with him, and in the scuffle over the pistol was shot, one shot taking effect in one of his legs, and another through the body.

Whether or not the robber succeeded in obtaining Smith's wallet or money bag, which he carried in his hip pocket, does not appear; but this is not deemed of any importance. After the shooting the robbert left through the back way, and Smith died shortly thereafter.

The evidence offered by the state to connect the defendant with the commission of the offense consists of circumstances showing his presence in the immediate locality of the crime and alleged confessions made by him to Tom O'Neal, a negro employee of the oil company at the filling station, and to the arresting police officers in the presence of others.

Tom O'Neal testified in behalf of the state, his testimony going to show that he was present at the time of the killing in a Ford automobile, with another negro by the name of Hatchett, waiting to carry Smith to his home; that defendant first approached witness and Hatchett and commanded them to hold up their hands, but remarked: "You-all ain't got nothing. You-all stay here and wait," and then went immediately to where Smith was closing the door and commanded him to hold up his hands; that Smith resisted and engaged in a scuffle with defendant and was shot; that neither witness nor Hatchett said or did anything, until Smith was shot; that witness then called the police and the ambulance, and notified Mr. Norton, the manager of the oil company.

This witness further testified: "I knew Charlie Jackson before this. I did not have any conversation with him about robbing Mr. Smith, before this, and I did not know that he was going to rob Mr. Smith. I had a conversation with him after he robbed Mr. Smith, on Tuesday, this was on Saturday night. He told me something about it on Tuesday. Before he told me about it, I did not threaten him or offer him any inducement, or any reward to tell me about it. Nobody else in my hearing or presence threatened him or treated him with violence. I did not do any of these things. Charley and I were good friends then. We were at his home when he told me about it. I visited him up there at times. He told me that he killed Mr. Smith, and that he believed that I knew it, and he told me because he didn't want me to tell it. I did not promise him that I would not tell it. I told him that I would tell it if I had to tell it, but I would try to keep from telling it as long as I could. I told it when they arrested me, which was on Saturday, August 29th-August or September one. I told the officers about it when I was arrested. I did not have any part in robbing Mr. Smith, and I didn't know anything about it before he was robbed."

This witness testified on cross-examination: "I did not know it was Charlie. I did not know it was Charley then. I did not know it was Charley until he told me two or three days later, and that was the first time that I knew it was Charley. I had been sort-of-buddying around with Charlie. I would be with him at times. Hatchett, Charlie and Mack Madkins and I did not buddy around together, just me and Charlie. He came to my house sometimes, and I went to his, and we talked together. But I did not know his voice. He came up there and said: 'Stick them up,' and then walked up and told Mr. Smith to stick them up, and I heard him say that, and I did not know it was Charlie, until some days later."

This witness further testified that the defendant, about ten minutes after the shooting, was in the crowd that gathered at the filling station, dressed in blue pants and a white shirt.

This witness further testified that after he, Mack Madkins, and Frank Odum were arrested, "I told the officers down there that I didn't have anything to do with it, and I told them at first that I didn't know who had anything to do with it. They did not tell me that they were going to prosecute me for the murder. They told me they would hold me for the murder, and they told me if I didn't tell what I knew about it that it was going to go hard with me, and they whipped me with a rubber hose. I don't know who did the whipping, but it was the man that arrested me. They whipped me with a red rubber hose. They said they didn't do nothing but slap Mack Madkins. I did not see the cut places and bruised placed on his back, but I had cut and bruised places on me, after they put me through this rubber hose business. I told them that Charley was the one. I don't know whether I got out of it myself or not, but I don't reckon I am charged with the murder now. They told me I was held for a material witness. I was transferred and made bond at the County Jail as a witness. I don't know whether they whipped Charley or not."

Willie Frank Odum was also offered by the state as a witness, and in response to the examination by the solicitor, testified that he did not have a conversation with the defendant after the killing; that he had seen defendant in conversation, but did not know what he was talking about; and that he did not hear him make any statement about Mr. Smith being killed. During this examination the witness seems to have manifested that he was testifying under pressure of fear, and the court, over defendant's objection, allowed the solicitor to ask the witness: "Just to refresh your recollection, now, Willie Frank, didn't you tell me yesterday that you heard Charley Jackson here talking in the presence of his father?" And the witness responded: "In jail." The solicitor then asked: "In jail? Well, what did you hear him say?" And the witness, after defendant's objection was overruled, was instructed by the court: "Go ahead and answer the question, boy. Don't be scared to answer the question." The witness then answered: "I am not afraid. They were talking in the lavatory. I was standing on the outside, and I walked in, and they were still talking, and he asked me, he said, 'Willie'-at first he told me-I am talking about Charlie Jackson. 'He told me that he had told his father that he pleaded guilty, and that Tom told him that he was going to plead guilty, but Tom refused to do so,' and I walked out of the lavatory. That is all I heard about that."

The defendant's motion to exclude this testimony was overruled, and the witness testified in response to questions put by the court, as follows:

"Old man, before he made that statement, did you or anyone there in your presence or hearing there make any offers or promises or inducements to Charley Jackson? A. No, Sir.

"Was he threatened, or intimidated, or abused by you or anyone else in your presence or hearing? No, sir.

"Anything done to him at all there at the time? No, sir.

"Was he told that it would be better for him to say that, or worse for him to say that? I hadn't heard that.

"I am just asking you if any such thing as that was done there by you or anybody else? No, sir."

On further examination the testimony of this witness tended to show that his fear was of the defendant.

Officer Murphree, who worked on the case against the defendant and others, growing out of the killing of Smith, testified that defendant made more than one statement to him; that in his first statement, made within an hour and a half or two hours after his arrest, defendant said "that he was the lookout man, at Mr. Smith's filling station. He said he was on First Avenue sidewalk, and he said him and Tom O'Neal had talked it over, and had framed to hold up Mr Smith, and that he acted as the look-out man, and also Willie, Frank Odum. He told Willie Frank Odum to get the gun, and he claimed that he went off and he came back and he couldn't get the gun, and later Tom went and got the gun, brought his daddy's gun, Tom O'Neal; and he told Tom to be the gun man, and Tom told him he wasn't going to be the gun man. He did not tell me that he shot Mr. Smith when he made the first statement. He made the second statement to me in the City Jail at Ensley on the following Sunday morning, after he was arrested on Saturday afternoon. *** He said he wanted to tell me the truth about it. He said that if I would go and tell Tom O'Neal and make Tom tell me the...