McBride v. State

Decision Date17 June 1975
Docket Number1 Div. 421
Citation55 Ala.App. 311,314 So.2d 914
PartiesWilmer McBRIDE v. STATE.
CourtAlabama Court of Criminal Appeals

Fred F. Smith, Jr., and Johnny Mack Lane, Prichard, for appellant.

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

HARRIS, Judge.

Appellant was convicted of murder in the second degree and sentenced to ten years imprisonment in the penitentiary. He was represented at arraignment and trial by employed counsel. After conviction he was found to be indigent and he was furnished a free transcript and one of his trial lawyers was appointed to represent him on appeal. He pleaded not guilty and claimed self-defense.

The homicide grew out of a crap game on Saturday afternoon, April 7, 1973, at the home of Thomas Sayles at 329 Prosper Way Street in the City of Prichard, Mobile County, Alabama. All participants in the crap game were Negroes.

The facts leading up to and culminating in the shooting of the deceased are so confusing and conflicting that only a jury could unscramble the confusion and conflicts and arrive at the truth.

The only uncontradicted testimony is that appellant shot and killed the deceased with a .22 rifle bullet.

After the shooting appellant left the home before the police arrived. He was later arrested and given the Miranda rights and warnings and signed a waiver of rights form which reads as follows:

'VOLUNTARY STATEMENT

'DATE 4--8--73 PLACE Detective Division TIME STARTED 8:35 A.M.

'I, Wilmer McBride, am 35 years old. My date of birth is May 13th 1937. I live at 1713 Whistler Ave. The person to whom I give the following voluntary statement, G. C. Robinson, having identified and made himself known as a Detective, DULY WARNED AND ADVISED ME, AND I KNOW:

'1. That I have the right to remain silent and not make any statement at all, nor incriminate myself in any manner whatsoever.

'2. That anything I say can and will be used against me in a court or courts of law for the offense or offenses concerning which this statement is herein made.

'3. That I can hire a lawyer of my own choice to be present and advise me before and during this statement.

'4. That if I am unable to hire a lawyer I can request and receive appointment of a lawyer by the proper authority, without cost or charge to me, to be present and advise me before and during this statement.

'5. That I can refuse to answer any questions or stop giving this statement any time I want to.

'6. That no law enforcement officer can prompt me what to say in this statement, nor write it out for me unless I choose for him to do so.

'A. No one denied me any of my rights, threatened or mistreated me, either by word or act, to force me to make known the facts in this statement. No one gave, offered or promised me anything whatsoever to make known the facts in this statement, which I give voluntarily of my own free will and accord.

'B. I do not want to talk to a lawyer before or during the time I give the following true facts, and I knowingly and purposely waive my right to the advice and presence of a lawyer before and during this statement.

'C. I certify that no attempt was made by any law enforcement officer to prompt me what to say, nor was I refused any request that the statement be stopped, nor at anytime during this statement did I request for the presence or advice of a lawyer.

'I have read each page of this statement consisting of 8 pages, each page of which bears my signature, and corrections, if any, bear my initials, and I certify that the facts contained herein are true and correct.

'This statement was completed at 9:45 A.M. on the 8th day of April, 1973.

'WITNESS: Det. G. E. Robinson

WITNESS: Lt. A. G. Hildreth

'Wilmer McBride

Signature of person giving voluntary statement'

Following the execution of the above form, appellant gave the officers a statement in question and answer form covering eight (8) pages. He signed his name to each page which was witnessesed by Detective G. E. Robinson and Lieutenant A. G. Hildreth. After a lengthy voir dire examination out of the presence and hearing of the jury the trial court held the confession was voluntary. The proper predicate was laid and the confession was admitted in evidence. It would serve no useful purpose in setting out this signed confession but pertinent reference will be made thereto later in this opinion.

Back to the crap game which started shortly after noon on the day of the homicide. The gamblers were drinking beer and gin and everything seemed to be peaceful until after the deceased arrived. He entered the game and soon lost his money. He left to borrow some money from a woman and returned in fifteen to twenty minutes with a twenty-dollar bill. He put the twenty dollars on the floor and re-entered the crap game. He won a few dollars and then found his twenty-dollar bill missing. He made everyone present open their billfolds to see if anyone present had his money. Each of the players assured him they did not take his money, but they told him a man named Reed might have taken the money as he was the only person who left the house about the time the money was missing. The deceased left the house and found Reed who assured him that he did not take the money. The deceased returned with some more money and said, 'let's see who takes...

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