Ledbetter v. State

• Decision Date: 15 June 1948
• Docket Number: 7 Div. 936.
• Citation: 36 So.2d 564,34 Ala.App. 35
• Parties: LEDBETTER et al. v. STATE.
• Court: Alabama Court of Appeals

36 So.2d 564

34 Ala.App. 35

LEDBETTER et al. v. STATE.

7 Div. 936.

Alabama Court of Appeals

June 15, 1948

Rehearing Denied June 29, 1948.

Robinson & Parris, of Gadsden, for appellants.

A A. Carmichael, Atty. Gen., and Jas. L. Screws, Asst. Atty Gen., for the State.

The following charges were refused to defendants:

3. I charge you, Gentlemen of the jury, that if the State's evidence consists in the statement of witnesses of the truth of which you have a reasonable doubt, you cannot convict the defendants, although you may not believe the testimony of the defendants' witnesses.

4. I charge you, Gentlemen of the jury, that if you believe from the evidence in this case that the shot which killed the deceased was accidentally fired during the struggle for possession of the pistol between the defendants and T. C. Finley, then you cannot convict either of the defendants.

5. The court charges the jury that the burden is upon the State, and it is the duty of the State to show, beyond all reasonable doubt, and to the exclusion of every other reasonable hypothesis every circumstance necessary to show that the defendants are guilty; and unless the State has done that in this case, it is your duty, Gentlemen of the jury, to render a verdict of not guilty.

8. The court charges the jury that you are unauthorized to find a verdict of guilty on testimony of a single witness, if you had a reasonable doubt of the truth of his statement.

11. The court charges the jury that if there is one single fact proved to the satisfaction of the jury which is inconsistent with the defendants' guilt, this is sufficient to raise a reasonable doubt, and the jury should acquit them.

CARR Judge.

George and Horace Ledbetter, brothers, were separately indicted for murder in the first degree. The person alleged to have been killed was Ralph Simmons, a brother-in-law of George. By agreement the two cases were consolidated for trial by the same jury, with the understanding that separate verdicts should be returned. Each defendant was convicted of manslaughter in the first degree. The appeals are here on one record.

In brief of counsel for appellants is contained a fair and accurate delineation of the tendencies of the evidence:

'The evidence presented by the State tended to show that on the afternoon of September 7, 1946 the Defendant George Ledbetter had some trouble with his wife, Minnie Lee Ledbetter, at the home of A. L. Ledbetter, where George and Minnie Lee lived; that after this trouble had occurred Minnie Lee Ledbetter went to the home of T. C. Finley, Finley being her father; that about 5:30 P.M. Minnie Lee and Ralph Simmons, the deceased, who was a brother-in-law to Minnie Lee, left the Finley home and went to the store of one Allison, who was also a Justice of the Peace; that Minnie Lee and Ralph Simmons arrived at the Allison store just at closing time which was 6 P.M.; that at Minnie Lee's request Mr. Allison issued a peace warrant against the Defendant George Ledbetter; that George Ledbetter entered the store after the warrant was issued and before Minnie Lee and Ralph Simmons departed; that George Ledbetter threatened to kill both Minnie Lee Ledbetter and Ralph Simmons in their presence in the Allison store; that Minnie Lee and Ralph Simmons returned to the Finley home and entered into a room at the back part of the house; that after Simmons returned T. C. Finley took his pistol and sat on his front porch for a few minutes while Ralph Simmons, Minnie Lee Ledbetter and her mother Mrs. T. C. Finley remained inside the house; that after T. C. Finley had been sitting on his front porch for a few minutes with his pistol in his front trouser pocket, the defendants George and Horace Ledbetter apprached the Finley home from the direction of Springville, came up the walk toward the Finley porch; that as they approached T. C. Finley made the statement to George Ledbetter 'Don't you come in here George'; that thereupon the Defendant George Ledbetter attacked T. C. Finley by hitting him with his fist; that George Ledbetter and T. C. Finley engaged in a short scuffle during which Finley succeeded in getting the pistol out of his pocket; that Horace Ledbetter joined George in the affray and twisted the pistol out of Finley's hand while George held Finley on the porch floor; that while this scuffle was in progress the deceased, Ralph Simmons, came out of the house onto the porch and knocked George Ledbetter off of Finley with a chair; that thereupon George Ledbetter grabbed Ralph Simmons by the shoulders and told Horace Ledbetter to 'Shoot him, shoot him'; that thereupon Horace Ledbetter did shoot the Deceased; that some five or ten minutes after the shooting of Simmons George Ledbetter entered into the house and attacked Minnie Lee by beating and stomping her, and also Mrs. T. C. Finley, hitting her and knocking her unconscious; that George Ledbetter then took the pistol from Horace and started after T. C. Finley shooting at him three times with the pistol as he ran off the porch and around the Finley house; that Simmons was removed from the Finley home to St. Vincents Hospital in Birmingham where he died at about 11 P.M. on the same day.

'The evidence presented by the appellants showed that George Ledbetter saw his wife, Minnie Lee, and Ralph Simmons in the town of Springville after they had secured the warrant; that shortly after seeing Ralph and Minnie Lee George met his brother Horace on a street corner in Springville and requested he go with him to the Finley home for the purpose of getting Minnie Lee and coming back to Springville to a movie; that on reaching the Finley home, George, while standing in the Finley yard, called into the house and requested Minnie Lee to come out to see him; that while calling he approached the edge of the porch where T. C. Finley was standing; that T. C. Finley took a pistol from his pocket and hit George Ledbetter over the head with the pistol; that in defending himself from this attack George Ledbetter engaged T. C. Finley in a scuffle; that Horace Ledbetter joined in the scuffle; that while all three men were grappling on the porch floor the pistol with which Finley had struck George Ledbetter was discharged, the bullet striking Ralph Simmons and causing his death; that neither of the Defendants knew who was holding the pistol at the time it fired; that the discharge of the pistol was accidental; that after the accidental discharge of the pistol the scuffle between the two Defendants and T. C. Finley ended abruptly whereupon Finley ran off the end of the front porch and around his house; that some two or three minutes after the scuffle ended George Ledbetter carried the pistol to the edge of the Finley yard and fired twice into the ground in order to empty the pistol. The testimony of Dr. McGruder, the physician who tended the deceased at St. Vincents Hospital was to the effect that the bullet struck the deceased just below his right nipple; that the path of the bullet was not probed but that the bullet was discovered at a point on the back side of deceased's body some six inches lower than the point of entry showing that the bullet had ranged downward.'

Section 61, Title 30, Code 1940 provides: 'In case two or more persons are tried jointly, the solicitor shall strike one and each defendant shall have the right to strike off one name and they shall continue thus to strike off names until only twelve remain and the twelve thus selected shall be the jury charged with the trial of the defendants.' The trial judge adhered to this prescribed procedure.

In brief counsel for appellants makes this insistence: 'A summons was issued for a juror George W. Martin. This summons was served on George W. Matthews. The Defendants objected to striking from the jury list furnished them because it did not contain the name of George W. Martin nor of George W. Matthews. The Court overruled the Defendants' objection and required them to strike from the list furnished. This action of the Court was error since it placed the Defendants on trial with less than the number of jurors ordered by the Court for the trial of the case.'

With reference to this matter the court made the following statement: 'Now then, gentlemen, this situation has arisen here. On the jury card that was drawn it was George W. Martin, and a summons was issued for George W. Martin. The juror's card gives his address as Pell City, and his occupation as a barber. The Sheriff states here in open court that they made every effort to find George W. Martin in Pell City, and couldn't find one there. The summons was handed by the Sheriff to George W. Matthews, who is a barber at Pell City, and it is evident to me that that is not the man. I am excusing him on that. You may have an objection to that if you want it.'

The trial judge concluded that the wrong person had been summoned. There appears nothing to the contrary. Clearly, the appellants were not due to have the name of a person included on the striking list who had not been drawn and placed there according to law. Section 67, Title 30, Code 1940 provides that a continuance should not be granted when there appear irregularities comparable to those of instant concern.

The court did not abuse his discretion in excusing the deputy sheriff from the operation of the rule which had been invoked for the witnesses. Wright v. State, 1 Ala.App. 124, 55 So. 931; Henderson v. State, 1 Ala.App. 154, 55 So. 437.

Whether or not the appellants were under the influence of intoxicants on the occasion of the homicide related to a matter of pertinent inquiry. Montgomery v. State, 160 Ala. 7, 49 So. 902; Evers v. State, 25 Ala.App. 537, 150 So. 172. The insistence that the witnesses were not qualified to give opinions...