Matthews v. State, 6 Div. 493

• Decision Date: 13 November 1973
• Docket Number: 6 Div. 493
• Citation: 286 So.2d 91,51 Ala.App. 417
• Parties: Albert MATTHEWS, Alias v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 91

286 So.2d 91

51 Ala.App. 417

Albert MATTHEWS, Alias v. STATE.

6 Div. 493.

Court of Criminal Appeals of Alabama.

Nov. 13, 1973.

Louis W. Scholl, Birmingham, for appellant.

William J. Baxley, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State.

HARRIS, Judge.

Appellant was convicted of murder in the first degree and his punishment fixed at life imprisonment. He was represented in the trial court by appointd counsel who represents him on appeal and he is here with a free transcript.

The indictment charges that appellant killed James T. McCall by stabbing him with a File. Appellant, deceased and several other men and women lived at a rooming house at 1109 Seventh Avenue, North, Birmingham, Alabama. It was in this house that the killing occurred on April 16, 1972, around 7:00 P.M.

Robert Lee Alexander testified that he was in charge of the rooming house and as part of his duties he collected rent from the roomers. This was a two-story house and Alexander had a room downstairs where he lived with his common-law wife of two years. Appellant and Sterling Harris had separate rooms upstairs. The deceased had a room to himself.

Just before the killing Alexander, his wife and others were in Alexander's bedroom watching the television show 'To Catch A Thief'. The deceased came in the room and said something to Alexander, who walked out into the hall and saw appellant talking to Harris, who was standing on the second step of the staircase. Alexander told appellant to stop bothering the old man and told Harris to go to his room. The deceased was standing in the hallway at this time. Alexander returned to his room to get a cigarette and while in the room he heard appellant say, 'I don't like you', after which he heard a commotion. He went back into the hall and saw the deceased falling against a wall and then to the floor on his face. He saw appellant bend over the deceased and stab him in the back with a knife. Asked to describe the knife, he replied, 'Well, all I know, about this long with a silver metal handle on it.' After stabbing the prostrate body of the deceased, appellant jerked the knife out of his back and ran out the front door.

Appellant immediately left Alabama and took refuge in the State of Texas. On or about April 29, 1972, he was arrested by a police officer of the City of Houston on a charge of public drunkenness. After his arrest he told the officers that he had killed a man in Birmingham on April 16, but that he acted in self-defense. The Houston Police Department notified Birmingham of appellant's arrest and that he would waive extradition. He was returned to Birmingham on May 18, 1972.

W. L. Allen, a deputy coroner of Jefferson County with thirteen years of experience, whose qualifications were properly proved, testified that he went to the rooming house on the night of the homicide and examined the body of the deceased. On external examination, he found one knife wound in the chest, one in the back, and one in the shoulder. The body was removed to the funeral home where the coroner made a more definitive examination and the wounds were probed. In describing the chest wound, the coroner testified:

'On the front part of his body I found a stab wound which was located two and a half inches down from the upper sternal notch, which is the notch right at the top of the sternum. It was two and a half inches down and one and a half inches of the midline of the body. This wound I probed for a distance of four inches going down and toward the center of the body and into the pericardium of the heart.'

He probed the wound in the left shoulder for a distance of one and a half inches and the wound in the mid-back for a depth of three inches. He expressed the opinion that the stab found that went into the pericardium (the sac in which the heart is encased) pierced the heart and this particular wound caused death.

The death weapon was not found. When the state rested, appellant moved to exclude the evidence for failure of the state to make out a prima facie case, and on the further ground there was a fatal variance between the allegations of the indictment that the death weapon was a File and the proof adduced showed that the deceased was killed with a Knife.

In Cozart v. State, 42 Ala.App. 535, 171 So.2d 77, the Court of Appeals quoted from Blackstone iv Comm. 196 as to the mode of killing in a murder case:

"* * * The killing may be by poisoning, striking, starving, drowning, and a thousand other forms of death, by which human nature may be overcome. And if a person be indicted for one species of killing, as by Poisoning, he cannot be convicted by evidence of a totally different species of death, as by Shooting with a pistol, or Starving. But where they only differ in circumstances, as if a Wound be alleged to be given with a sword, and it proves to...