Madden v. State, 8 Div. 407
| Citation | 112 So.2d 796,40 Ala.App. 271 |
| Decision Date | 24 March 1959 |
| Docket Number | 8 Div. 407 |
| Parties | Percy Lee MADDEN v. STATE. |
| Court | Alabama Court of Appeals |
Howell T. Heflin, Tuscumbia, for appellant.
John Patterson, Atty. Gen., and Jas. W. Webb, Asst. Atty. Gen., for the State.
Percy Lee Madden was indicted for the first-degree murder of Nelson Johnson.
He has been adjudged guilty of manslaughter in the first degree, and upon his motion for a new trial being overruled, an appeal was perfected to this court.
On the night of 11 October 1957 a crap game was in progress in the home of Harold Warren, in Colbert County, with a goodly number of players. The deceased arrived at the game accompanied by Alberta Moseley and James Bankston, this trio having been together for some time, driving around in Johnson's automobile.
It appears that the appellant began 'fading' the deceased in the crap game, and after losing about $20 he decided he had had enough, and refused to 'fade' further. This considerably irritated the deceased, and although other players offered to fade deceased, he insisted upon the appellant continuing to be his sole opponent.
This situation developed into a considerable argument between the appellant and the deceased with threats and obscene exchanges, mostly on the part of the deceased.
Harold Warren, the host, secured a shotgun, 'took up the blanket,' and ordered all of the 'guests,' variously stated as being from twelve to eighteen, out of his house.
Before actually leaving the house the appellant offered to 'shake it off' with the deceased, and to buy him a drink.
These olive branches proffered by the appellant were refused by deceased with renewed threats and obscenities.
The group of guests left Warren's house and went into his yard where several automobiles were parked. At this point the conflict between the witnesses for the State, and those for the defense became grossly irreconciliable.
James Bankston, and Alberta Moseley, as witnesses for the State, testified that they entered the deceased's automobile, the deceased occupying the driver's seat, Alberta being in the middle, and Bankston sitting on the right side.
The State's evidence further tends to show that the deceased had started the engine of his car when John Edward Smith, standing about five feet or less away, asked deceased why he did not beat him (Smith) up, as he had stated he would do, and was he leaving because he was scared. The deceased replied he wanted no trouble.
At this time Alberta noticed the appellant standing immediately behind John Edward Smith with a pistol in his hand. She urged Bankston to open the right-hand door and get out. This Bankston proceeded to do, but not with speed suitable to Alberta, so she gave Bankston a shove which sent him onto the ground, with Alberta following.
These witnesses heard the first shots while on the ground.
The deceased received several wounds. The main one entered his back, ranged downward and emerged in the front abdomen about two inches to the right of, and below the navel.
Two or more bullet holes were found in the right front door, none in the left front door next to the driver's seat.
Bankston testified that during the shooting, or immediately following the shooting, deceased's automobile began to move forward, and the deceased fell out of the left front door. He chased the car, and returned it to its original position.
Alberta testified that during the shooting she got up from where she had fallen, ran around the front of the car and grappled with appellant for possession of the pistol. The gun was fired by appellant once during this struggle. He knocked her down, hit her with the pistol, and then went to where the deceased lay and struck him on the head with the pistol. Alberta did not know whether the car moved off or not during or after the shooting, as she was too engaged in her scuffle with the appellant.
The evidence presented by the defense witnesses including the testimony of the appellant, tended to show after the deceased had declined the appellant's peace overtures the deceased continued his threats and obscenities toward the appellant in the yard. Finally the deceased expanded his threats to include all present, stating he had something in his car 'to take care of all of you _____s.' At this declaration the deceased ran to his car, flung open the door and was reaching inside when the appellant, standing some 20 feet away, opened fire.
According to the defense evidence, neither the deceased, Bankston, nor Alberta were in the car at the time of the shooting, nor did Alberta engage in any struggle with the appellant, nor did the car move after the shooting, nor did appellant approach deceased after shooting him.
Following the shooting the appellant drove into Tuscumbia and surrendered himself to the Sheriff of Colbert County.
After the defense had rested the State called John Edward Smith as a rebuttal witness.
On his direct examination the testimony of this witness was evasive, and equivocal. He testified that at the time of the shooting he was not exactly sure where deceased was, he thought he was in the yard, but he didn't know, as he was a good way from the car; he didn't know whether the motor of deceased's car was running at the time the shots were fired, but it seemed to him in a way it was because the car moved backwards after the shooting.
On cross-examination this witness testified that he wasn't certain whether the car moved backward or forward.
He was then asked if he went to deceased's car and asked deceased if he was leaving because he was scared.
The court sustained the State's objection to this question.
He was asked if he heard the deceased down about the car make the statement that he 'had something in his car for all you _____s.'
The State's objection was sustained to this question.
The grounds of the State's objections to these questions were that it sought evidence not in rebuttal to matters brought out by the State on direct examination of the witness.
It is to be noted that both questions sought to elicit evidence already well within the issues of the case from previous evidence.
The testimony of John Edward Smith could more properly have been presented during the State's evidence in chief. However, it is within the discretion of the trial court to permit evidence in rebuttal which should have been offered as part of the case in chief....
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