McDonald v. State
| Decision Date | 31 August 1976 |
| Docket Number | No. 8,8 |
| Citation | 340 So.2d 80 |
| Parties | Eddie McDONALD v. STATE. Div. 831. |
| Court | Alabama Court of Criminal Appeals |
Robert Straub and Sherman Powell, Jr., Decatur, for appellant.
William J. Baxley, Atty. Gen. and Gary R. Maxwell, Asst. Atty. Gen., for the State, appellee.
Appellant was indicted for murder in the first degree and the jury found him guilty of murder in the second degree and fixed his punishment at 35 years in the penitentiary. Prior to arraignment and trial appellant was found to be indigent and counsel was appointed to represent him. He pleaded not guilty and not guilty by reason of insanity. After sentence was imposed he gave notice of appeal and was furnished a free transcript. Trial counsel was appointed to represent appellant on appeal.
The evidence was in sharp conflict in many respects. The State produced an eyewitness to the shooting of the deceased in his own home by appellant with a sawed-off shotgun. Appellant's version as to the circumstances that preceded and led up to the shooting was at variance with the State's eyewitness in some degree.
There was no motion to exclude the State's evidence; there was no request for the affirmative charge, and no exceptions were reserved to the Court's oral charge to the jury. Appellant did file a motion for a new trial in which he questioned the sufficiency of the evidence but no testimony was taken on this motion and the motion was overruled and denied. The motion also raised the refusal of the trial court to give at the request of appellant a number of charges on the law of self-defense.
This two-volume record covers more than 400 pages and we see little need to detail the testimony of all the witnesses. We feel that a condensed recital of the testimony of the State's eyewitness and appellant's testimony will serve to point up the major issues presented on this appeal.
On August 23, 1975, appellant and five or six other men came to Lawrence County from Limestone County in search of a man named 'Tex' who they thought had stolen some tools and some rare coins that belonged to one of the men. While in Lawrence County, they decided to go to the home of Rita Ferguson and Bessie Jones who were 'go go' girls at a nightclub. When they entered this home, one of the girls was holding a shotgun and Bessie Jones had blood on her face. The girls told the boys that the deceasd had come to their house and beat them up and generally tore up the house as there was broken glass all over the living room and the floor was wet. They told the men that the deceased threatened to come back later and give them some more of the same. The men decided to take matters into their own hands and go to the home of the deceased as they saw no reason for anyone to beat up the girls and tear up their home. The girls went with them to show them where the deceased lived. The time was around 7:00 p.m. on August 23, 1975. Just before the men and girls drove up to the home of the deceased, the deceased and his friend Tommy Mackey went to the home of the deceased's grandmother to make a telephone call.
According to the testimony of Tommy Bruce Mackey, who lived with the deceased and they had been close friends for six years, after the deceased had made the telephone call and they were walking back home, a car pulled into the driveway of the deceased. Someone in this car called the deceased and he went over to the car. Mackey stated that he went in the home of the deceased where he saw the appellant standing inside the house next to the wall of the living room holding a shotgun. The deceased came stumbling backwards through the front door into the room. When Mackey first entered the room, the man who was holding the shotgun pointed the gun at him and ordered him to sit in a chair next to a couch. As soon as the deceased entered the room, he saw the man with the shotgun and approached him to take the shotgun and as he grabbed the gun, it discharged and the load went into the floor of the living room. At this point one of the other men struck the deceased, knocking him to the floor and began to beat on him. Appellant was the man with the shotgun. The deceased was pretty well intoxicated and after he was knocked to the floor, he was subdued. The man who knocked him to the floor picked him up and put him on the couch.
About this time several of the other men and the two girls entered the room and there was some talk about previous difficulties concerning the girls. Mackey stated that during this conversation appellant had the shotgun pointed at the deceased. Mackey told the girls to tell the men that he was not involved in any difficulties with them. The deceased was still sitting on the couch and he told appellant to put the gun up and there was no need or use for the gun. The man who knocked the deceased to the floor was standing between him and appellant and he could not see the shotgun though he could see the deceased still sitting on the couch. He heard someone say, 'Don't shoot,' and the gun fired and the load struck the deceased in the upper left chest and he fell backward on the couch. The girls started screaming and they all left the house immediately. Mackey waited until he heard the car leave and he went to the deceased's grandmother's house and called the officers.
Ernest Knox, Deputy Sheriff of Limestone County, arrested the defendant at his uncle's house. Mr. Knox testified that he had a murder warrant for appellant's arrest and had been looking for him for two days all over Limestone County. He further stated that before he could ask appellant a single question, he stated, A shotgun in the possession of appellant was identified by him as the same gun he brought back from Lawrence County.
Mr. J. D. Ferguson, the father of Rita Ferguson, testified that the shotgun was his. He stated that he owned two shotguns, a regular Magnum Browning and a Buck Special. He said the guns were supposed to be at his place and he did not take the gun anywhere that day. He further testified that he saw his daughter, Rita shortly after 12 o'clock noon on August 23, 1975, and she was upset and excited. He stated that her companion, Bessie Jones, was bruised and bleeding. He went to his daughter's house and there was broken glass and water all over the floor.
Mrs. Elaine Scott, a member of the State Toxicology Department, testified that she ran a blood test on a blood sample taken from the body of the deceased and the alcoholic content showed it was .26 percent.
John H. Kilburn, also with the State Department of Toxicology, testified that he ran tests on the weapon shown as State's Exhibit 1, and the shells found at the scene of the crime. He found that one shall was not fired from the weapon and the other shell was possibly fired...
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