Madison v. State

• Decision Date: 22 April 1975
• Docket Number: 2 Div. 140
• Citation: 55 Ala.App. 634,318 So.2d 329
• Parties: James MADISON, alias v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 329

318 So.2d 329

55 Ala.App. 634

James MADISON, alias v. STATE.

2 Div. 140.

Court of Criminal Appeals of Alabama.

April 22, 1975.

Rehearing Denied May 27, 1975.

Philip Henry Pitts, Selma, for appellant.

William J. Baxley, Atty. Gen., and Joseph G. L. Marston, III, Asst. Atty. Gen., for the State.

BOOKOUT, Judge.

The appellant was indicted on a charge of first degree murder, convicted of second degree murder and sentenced to twenty-five years in the penitentiary.

The evidence shows that the appellant caused a shotgun he was holding to discharge, and the shot struck his four-month-old daughter, killing her. His wife, who was holding the child, was wounded. Appellant had been visiting a drinking establishment in Greensboro on June 12, 1971, and had possibly three to five cans of beer over a period of two or two and one-half hours.

While there, his wife came by and asked him to come home and left two of his sons with him, which he interpreted as being for the purpose of seeing that he did not linger at the bar too long. His wife then went to his mother's store and shortly thereafter the appellant left the 'beer joint' with his sons in his truck. He stopped by his mother's store and then drove home. When his wife did not arrive by supper time, he and the boys started out again in the truck, but passed his wife, who stopped and took the two boys in her car and drove to his sister's house. The appellant returned home, but his truck broke down shortly before reaching there, and he walked the rest of the way home.

Appellant contends he took his shotgun and walked down to the woods near his house where his dogs were running and barking. He saw his wife drive up to the house and he went back to meet her. She was sitting in the car with the children. The baby was in an infant car seat and began crying. The appellant's wife put the baby over her shoulder while appellant was talking to her. He was agitated about his truck breaking down and stated that he ought to tear up the car also, at which time he hit the outside rear view mirror with the barrel of his shotgun. It discharged, hitting the baby and his wife. Appellant hysterically drove his wounded wife and baby to the Hale County Hospital in Greensboro. The child died shortly after their arrival, the wife was transferred to Tuscaloosa to another hospital, and the appellant, still in hysterics, had to be forcibly held down and sedated.

The appellant made a statement to investigating officers while in jail in the early morning hours of Jnue 13, 1971. Over objection, that statement was testified to and was in conflict in some details with the version given by the appellant at the trial. In his statement in jail, he said he had gone in the house and had gotten the gun because he thought some of his wife's relatives were coming over to beat him up. During the trial, he stated that he did not remember talking to the investigating officers at the jail at all and did not remember making such a statement.

Witnesses who saw the appellant at the hospital testified he was in hysterics, had to be held down and tied down on a stretcher, and sedated. He was seen yelling and crying outside the hospital as well as inside, repeating statements such as:

'My God, I've shot my baby.

'I have killed my baby.

'I shot my baby.

'God, don't take my baby, take my life, but don't take my baby.

'Lord, I done killed my baby.

'I killed my child.'

Appellant's wife testified to substantially the same facts as he did. She did not hear him say anything but, 'the Goddamned truck,' prior to the shot, then he began screaming he had shot his baby and rushed them to the hospital in Greensboro. She was transferred to a hospital in Tuscaloosa where she stayed for over a month. She said they were not having any particular difficulty on that day, and she moved back in with the appellant and their other children when she was released from the hospital and was still living with him at the time of the trial.

Law enforcement officers testified as to the scene of the killing and so to the condition of the shotgun when found, which had its safety on. The side rear view mirror of the car was broken and glass matching the mirror was found at the scene of the shooting. Appellant had testified the safety on the gun automatically came on when it was cocked and that he did not have his finger on the trigger when the gun discharged. Other witnesses stated the gun had accidentally discharged at prior times when jarred or being set down on the stock. A firearms expert testified for the appellant that the gun would accidentally fire when a foreign object was placed in a certain position inside the gun. He could not make the gun fire from a bump or jar without a foreign object inside. A state toxicologist was recalled in rebuttal and testified that he could not make the gun accidentally discharge without pulling the trigger after many attempts to do so with the safety both on and off.

A number of other witnesses were called by the appellant who testified as to his good character and his reputation for truth and veracity.

I

The charge against the appellant being first degree murder, the question for the jury to determine was whether the shooting was, (1) willful, deliberate, malicious and premeditated, or (2) with malice but without deliberation or premeditation, or (3) a voluntary act without malice amounting to first degree manslaughter, or (4) accidental under such circumstances to be second degree manslaughter, or (5) simple negligence not amounting to a crime.

The jury returned a verdict of murder in the second degree, thus acquitting appellant of premeditated murder, but finding as a necessary element that the act was done with malice. From our review of the record, the evidence did not establish premeditation on the part of the appellant. From the evidence, the jury could just have easily returned a verdict of first degree manslaughter as second degree murder. Therefore, the element of malice is a crucial ingredient in this case and one which must be examined in the light of not only the legal evidence presented, but any matter coming to the attention of the jury which may have swayed them toward that coclusion.

If the prosecution could establish that the appellant was mad at his wife when she returned home, that he made threats to shoot her, and then fired the gun; then the evidence would clearly put before the jury a case of one of the degrees of murder. On the other hand, if there was no evidence that the appellant was mad at his wife, no evidence of a threat or an argument, but only that he was aggravated over his truck breaking down, the case for murder weakens.

The only witnesses to the shooting were the appellant, his wife and their small children. The only testimony as to the actual circumstances of the shooting was from the appellant and his wife. Their stories are almost identical in detail: that there was no argument; the appellant was angry over his truck breaking down; he hit the car mirror with the gun while cursing his truck; the gun fired and the appellant sped his wife and baby to the hospital in a state of hysteria which lasted until he was sedated. Other evidence seemed to support these facts, i.e. the broken mirror, the gun found in the yard, testimony from the examining physician, and testimony from other witnesses at the hospital.

The appellant's contention that the gun fired while the safety was on and without him touching the trigger was challenged by the toxicologist's experiments with the gun. Other witneses said the gun had accidentally discharged in the past. This testimony along with statements from a firearms expert could properly be considered by the jury in reaching their verdict.

From all the evidence, the jury could possibly infer malice, but it would be a close decision. Therefore, any extraneous matter bearing on malice coming to the jury's attention could be highly prejudicial to the appellant and must be carefully scrutinized by this Court. The trial court attempted throughout the trial to see that only proper and legal evidence came before the jury.

The trial was peppered throughout with heated arguments between counsel; with admonitions from the trial judge to both counsels; by threats to hold counsel in contempt; and by an offer from an assistant district attorney to defense counesel to settle their argument outside with fisticuffs. Such was the atmosphere throughout much of the trial. Counsel for appellant made repeated objections on grounds that remarks of the prosecutors were improper, one such remark being made outside the hearing of the court reporter, but supposedly within the hearing of the jury. In essence, appellant contends that while the trial court sustained many of his objections and instructed the jury not to consider some of the statements made, nevertheless, remarks were made in the presence of the jury which were not capable of being eradicated from their minds.

This Court must, therefore, carefully review the conduct complained of in light of the authorities cited by both the appellant and appellee, balancing the presumptions in favor of the correctness of the verdict against the effect such conduct would have on appellant's receiving a fair trial.

II

During the course of the State's case, E. C. Kimbrough, a State Investigator, was called as a witness. He testified out of the presence of the jury as to the voluntariness of the appellant's statement to him at the county jail. The court found the statement to have been voluntarily given after appellant had been warned of his constitutional rights. The witness then testified from his notes, in the presence of the jury, as to what the appellant had told him.

On redirect examination, the prosecution asked the witness if he had some notes from a conversation he had with the appellant's two small sons, Clay and Scott Madison, who were four and five years old. The investigator said h...