Little v. State
| Decision Date | 03 August 1948 |
| Docket Number | 8 Div. 623. |
| Citation | 34 Ala.App. 114,39 So.2d 587 |
| Parties | LITTLE v. STATE. |
| Court | Alabama Court of Appeals |
Rehearing Denied Oct. 5, 1948.
R. L. Almon and Thos. Pettus, both of Moulton and Hutson & Russell, of Decatur, for appellant.
A. A. Carmichael, Atty. Gen., and Richard S Brooks, Asst. Atty. Gen., for the State.
The following charge was refused to defendant:
The appellant was convicted of murder in the second degree and sentenced to fifteen years imprisonment in the state penitentiary.
The deceased, Clifford Grigsby, was a share cropper of the accused. The evidence discloses that a misunderstanding arose over the landlord's contention that the tenant was not equally dividing some corn as it was gathered. This discord resulted in had feeling between the parties and finally climaxed in the homicide of instant concern.
Questions are presented which call for a detailed statement of the tendencies of some of the evidence.
There were four eyewitnesses to the occurrences of the main event Dalton Grigsby, a seventeen-year old son of the deceased; Neal Little, an adult son of the appellant; Dewey Oliver, who was about 50 or 75 yards away; and, of course, the defendant.
Oliver's testimony was given in the form of a written showing.
Young Little testified that he and his father had gathered corn during the forenoon and were returning to the corn field after lunch. His father had with him a sawed-off, double-barreled shotgun. When the couple had reached a point some distance from their home, the defendant, his son, and Oliver drove up to the barn near the house. After alighting from his car, the appellant called to the deceased to 'wait there.' Witness and his father stopped. The defendant and his son came up to about ten steps away, at which time the deceased said, 'that was far enough.' Appellant replied, 'No, it wasn't far enough--that he had brought a hand over there to help gather the corn.' Neal Little was by the appellant's side, and Oliver had stopped about 75 yards to the rear. At this point we quote from the record:
'A. My father told him he had his corn gathered, he was going to haul it in that evening; Mr. Little told him he wasn't going to put it in that crib over there, and Neal Little said he wasn't going to get the mules and wagon to haul the corn, and my Daddy said, 'That's all right,' and Neal Little said, 'You haven't got guts enough to shoot no body.'
'
The witness testified also that, after his father had fallen and was lying on his face, the defendant 'stomped' him about three times on the back of the head.
With reference to the occurrence the testimony of the accused, which was supported in the main by his son and Oliver, was in substance as follows: That after the dispute about the distribution of the corn it was agreed that the appellant would furnish one person to help gather the grain; that on the occasion in question he had brought Oliver to serve in this capacity; that when he arrived the deceased and his son were about a quarter of a mile distant, out toward the field; that he called twice before Mr. Grigsby and his son stopped. For a full and accurate disclosure we here copy from his testimony:
'Q. You walked on towards him? A. Yes, sir, walked on up pretty close.
'Q. What do you mean 'pretty close'? A. I guess 6 or 8 or 10 feet.
'Q. He was standing there while you walked up towards him? A. Yes, sir.
'Q. Then what? A. I told him, 'Now I brought you the hand to help you gather the corn; just take the hand and go on and gather the corn any way you want to.' He says, 'I'm going to gather mine and you can do as you damn please about yours,' and I says, 'Well, I thought we agreed this morning that I would go ahead and bring a hand over here if I could get one,'--and we did; we agreed that I would bring one over there on Friday,--that was the day of the trouble. I didn't get a hand till 12 o'clock, but the understanding was that morning at the barn that if I didn't get one Friday, not to bring one till Monday morning; so I got one at 12 o'clock and carried him over there just like I agreed, and he refused to use the hand.
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The appellant denied that he 'stomped' the injured man.
It is cogently urged in brief of counsel that the lower court should have granted appellant's motion for a new trial. The position is taken that the preponderance of the evidence leads to the inevitable conclusion that the circumstances incident to the killing disproved malice, and therefore a verdict of murder was not authorized.
In this jurisdiction it is a general rule of law that, within the province of appellate review, we are not expected to determine whether or not witnesses are deposing to the truth when they give evidence in the trial of a cause in the nisi prius court. This is a prerogative exclusively for the jury and the trial judge. The wisdom of the rule is evident. We have attempted to delineate the tendencies of the evidence to afford full review. To set out the applicable rules and collate the evidence to these doctrines could serve no useful purpose.
Under facts in many respects analogous to those in the case at bar, the Supreme Court sustained a conviction for murder in the second degree in Underwood v. State, 179 Ala. 9, 60 So. 842. It is true that it is not indicated that a motion for a new trial was filed, but the tone of the opinion is clearly indicative of the mind of the court.
The facts and holdings in the case of Green v. State, 238 Ala. 143, 189 So. 763, are also compelling.
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