Kilpatrick v. State

• Decision Date: 15 May 1952
• Docket Number: 8 Div. 647
• Citation: Kilpatrick v. State, 257 Ala. 316, 59 So.2d 61 (Ala. 1952)
• Parties: KILPATRICK v. STATE.
• Court: Alabama Supreme Court

Page 61

59 So.2d 61

257 Ala. 316

KILPATRICK v. STATE.

8 Div. 647.

Supreme Court of Alabama.

May 15, 1952.

George Rogers, Birmingham, for appellant.

Si Garrett, Atty. Gen., and Robt. Straub, Asst. Atty. Gen., for the State.

FOSTER, Justice.

This is an appeal from a judgment of the circuit court denying a petition for the allowance of bail.

On May 17, 1951, four officers went to the home of Aubrey Kilpatrick near Boaz in Marshall County with a warrant for his arrest on a charge of assault with intent to murder with a gun. The officers went in an automobile and with them was Billy Kilpatrick, the twelve year old son of Aubrey Kilpatrick, and another boy, both of whom were picked up on their return from hunting that night. Why they were picked up does not appear. When they finally reached the home of Aubrey Kilpatrick, they alighted from the automobile. Kilpatrick on hearing them went out in the front of his house where the car had stopped in his yard. The officers got out so as to place the car between them and the house. The officers were Boyles, Bennett, Floyd and Lang. Shooting began at once. There was a conflict in the evidence as to who started the shooting, whether Kilpatrick or Bennett. The son of Kilpatrick, Billy, was alleged to have been held by the officers behind the car. It seems that the first shot from an officer's gun hit Kilpatrick and he fell and died. But as he did so, he drew his gun, as defendant's evidence tended to show, and fired possible five shots which hit the car. While this was going on, the defendant, James Kilpatrick, a sixteen year old son of Aubrey Kilpatrick, came from the barn into the house and heard his mother scream as the shots were fired. James then took a carbine (so-called in the evidence) and went out and began firing at the officers. Three of the officers, Boyles, Bennett and Floyd were killed. Lang was hit but not killed. The evidence tends to show that the bullet which killed Aubrey came from Bennett's pistol, and that the bullets from the carbine probably killed Floyd. Boyles and Floyd were killed instantly. Bennett died later. It does not appear what bullets killed Boyles and Bennett and hit Lang.

James Kilpatrick was indicted for first degree murder in separate indictments for killing each of the officers. He was tried first for killing Boyles, and was convicted of murder in the second degree and his punishment fixed at seventeen years in the penitentiary. He appealed to the Court of Appeals, and bail was fixed at $10,000 pending appeal. But no bail was fixed in the other two cases, and was denied. His appeal is still pending in the Court of Appeals.

He was then tried in case No. 2039 for the murder of Floyd. After taking much testimony a mistrial was ordered on account of certain remarks by one of the prosecuting attorneys. He thereupon filed the instant petition for a writ of habeas corpus to allow him bail in the Floyd case (No. 2039). That petition was heard on a transcript of the testimony taken in the Floyd case where a mistrial was ordered, and some testimony taken in the Boyles case now pending on appeal. The trial court denied bail, and this appeal followed.

Sometimes as a part of a single transaction more than one offense is charged to have been committed. If a person does a single act which results in the injury or death of more than one person, only one offense can be fastened upon him. But if in that occurrence he shoots different persons by different discharges of his firearm, an offense can be fastened separately as to each person so injured or killed, although there was but one transaction, and upon a trial for one such offense the whole transaction is admissible. Smith v. State, 88 Ala. 73, 76, 7 So. 52; Cheek v. State, 38 Ala. 227; Gunter v. State, 111 Ala. 23, 20 So. 632; Grissett v. State, 241 Ala. 343, 2 So.2d 399.

So that the conviction of petitioner for the murder in the second degree of Boyles does not acquit him of the murder in the first degree of Bennett and Floyd, although it had that effect as to Boyles.

The principle that has application to James Kilpatrick,...