Jones v. State, 6 Div. 689
| Decision Date | 30 July 1974 |
| Docket Number | 6 Div. 689 |
| Citation | 53 Ala.App. 690,304 So.2d 34 |
| Parties | Charles Franklin JONES v. STATE. |
| Court | Alabama Court of Criminal Appeals |
J. Wilson Dinsmore, Birmingham, for appellant.
William J. Baxley, Atty. Gen., Montgomery, Francis A. Poggi, Jr., Sp. Asst. Atty. Gen., Fairhope, for the State.
Appellant was found guilty by a jury of manslaughter in the first degree, which charge was impliedly included in an indictment for murder in the first degree. In accordance with the verdict of the jury, he was sentenced to ten years imprisonment in the penitentiary.
Briefs on this appeal from the judgment of conviction and sentence present one question only: Whether the trial court committed reversible error in overruling objections of defendant to testimony of a witness as to two statements made by the victim of the alleged homicide, which statements were: 'Charles (defendant) why are you doing this to me?' and 'Charles (defendant) is mean.'
Defendant and the victim were common law husband and wife.
Evidence without conflict was to the effect that on April 7, 1973, while defendant and victim were living at 452 Fifth Place West in the City of Birmingham she was severely burned and died as a result of the burns on May 2, 1973. The burns were second and third degree and involved about three-fourths of the body surface, primarily on the anterior chest and abdomen, the left arm, and around both legs and feet. Upon her arrival at the hospital, she smelled strongly of alcohol.
The State and defendant are in accord in the conclusion based on the evidence that the tragedy was precipitated by the pouring of a part of the contents of a can of flammable liquid upon the wife. Nobody, other than defendant and the victim, witnessed the incident. There was no direct evidence as to what ignited the liquid or fumes thereof.
According to testimony of defendant, there was an argument between him and his wife that started after a telephone conversation between her and her sister; he tried to 'calm her down,' but he couldn't get her to listen. She went into the bedroom, stating that nobody cared about her and that she had just as soon be dead. They both had had several drinks of liquor. Their drinking included some previous drinking the same afternoon with a man who had left the home of defendant and his wife prior to the incident that eventually caused her death. Defendant's testimony was to the effect that she was strongly under the influence of the liquor, and there is hardly any escape from the conclusion that he was also, although he denied being drunk. He stated that she kept repeating like a 'broken record' that nobody cared for her and that she would be better off dead. He said he noted a shotgun shell on top of a chifforobe, assumed that she had had it, and he took it and put it in his pocket. He further said that he then went to a closet to get a shotgun out of the closet, but instead took a can of flammable liquid, which he called paint thinner, took the top off and handed it to her; that she then took the can, turned it up and started pouring it on herself; he snatched the can away from her, but before getting it back from her she had poured enough on her to run 'all down in front of her.' He placed the can back on the shelf and told his wife to 'pull off her clothes and take a bath' and to try to get some sleep and leave him alone. He went on back into the living room; his wife came out 'as if she was going to the bathroom,' but he didn't look around at her and didn't know if she went in there or not. The next thing he knew she was 'burning, calling me and screaming,' while he was in the living room, sitting on the sofa. She was running toward the front of the house. He caught her and 'wrestled' her on back into the bedroom, attempted to put out the fire by using bedcovers, succeeded in doing so and called the fire department by telephone. He stated that when he handed the can to his wife he stated that 'if she wanted to kill herself to use that, rather than shoot herself with the shotgun.'
The Birmingham Fire Department responded promptly to the call, and the victim was sent promptly to the hospital. Sergeant Albert Wallace of the Homicide Division of the Birmingham Police Department testified that the victim stated in his presence, out of the presence of defendant and while she was in the emergency room, 'Charles why did you do this to me?' and 'Charles is mean.' The evidence indicates that the conversation was at 5:10 P.M., and there is evidence to the effect that the fire department received the call to the Jones home at approximately 4:50 P.M.
The trial court passed on the question of the admissibility of the statements of the victim out of the presence of the jury, as was highly appropriate. The witness on voir dire examination testified as to several statements of the victim, but the trial judge made it clear that he was limiting the evidence as to the declarations to the two statements hereinabove quoted. The State was attempting to get the declarations or statements in evidence on the theory that they constituted dying declarations of the victim, but the trial court did not agree that they met the test of the dying declarations rule stating:
'In short, I am not going to admit it as a dying declaration, but I am going to admit it on the theory of res gestae as set forth in this Davis case.'
The reference is to Davis v. State, 51 Ala.App. 200, 283 So.2d 650.
Appellant strongly contends in his brief that the Davis case, as well as Nelson v. State, 130 Ala. 83, 30 So. 728, relied upon in Davis, does not support the ruling of the trial court and that the statements do not constitute 'startled utterances or spontaneous declarations' or 'a part of the res gestae of the difficulty.' Appelee is equally insistent that 'the declarations of Annie Jean Jones were produced by and instinctive upon the occurrences to which they relate, rather than a retrospective narration of them.' and that the trial court correctly admitted them in evidence under the principles recognized in Davis and Nelson.
The interval between the burning and the declarations, between fifteen and twenty minutes, according to appellant, or approximately fifteen minutes, according to the State, is longer, it seems, than in any reported case in Alabama in which declarations have been held to have been admissible under the principles of Davis and Nelson. We fully agree, however, with Judge McElroy in 2 McElroy, The Law of Evidence in Alabama, (2d ed.) § 265.01(2), in connection with his favorable comments on Harrison v. Baker, 260 Ala. 488, 71 So.2d 284, that reasonable discretion should be vested in the trial court in making a determination of whether a particular declaration possesses sufficient spontaneity to authorize its admission in evidence, which would include a 'reasonable measure of discretion to admit or exclude a borderline statement' and that:
'No such strict contemporaneity should be required for a declaration made while the declarant was under the nervous excitement produced by a startling occurrence. Indeed, our courts have said that 'Time alone is not a determining criterion' (Domingus v. State, 94 Ala. 9, 11 So. 190) and that 'res gestae cannot be tried by any specified time or number of minutes' between the act and the declaration (L & N RR Co v. Pearson, 97 Ala. 211, 12 So. 176, 178).'
Having the mentioned authorities, as well as others, in mind and the extraordinary circumstances involved in this case, the bizarre startling occurrence and the extreme nervous excitement produced thereby, we have difficulty in concluding that the time interval precludes the declarations from meeting the test of spontaneity or the like as set forth in Davis and Nelson, as well as by other cases and authorities.
The principles announced in Davis and Nelson, and relied upon by the trial court, do not, however, furnish...
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