McDowell v. State

• Decision Date: 18 May 1939
• Docket Number: 6 Div. 395.
• Parties: MCDOWELL v. STATE.
• Court: Alabama Supreme Court

191 So. 894

238 Ala. 482

MCDOWELL v. STATE.

6 Div. 395.

Supreme Court of Alabama

May 18, 1939

Rehearing Denied June 22, 1939.

Rehearing Granted Nov. 9, 1939.

Appeal from Circuit Court, Cullman County; A. A. Griffith, Judge.

Linton McDowell was convicted of murder in the second degree, and he appeals.

Reversed and remanded on rehearing.

FOSTER BOULDIN, and KNIGHT, JJ., dissenting.

St John & St. John and Earney Bland, all of Cullman, for appellant.

Thos S. Lawson, Atty. Gen., and Wm. N. McQueen, Asst. Atty. Gen., for the State.

FOSTER, Justice.

Appellant was convicted of murder in the second degree, and his punishment fixed at fifty-five years in the penitentiary. He shot deceased with a pistol in an altercation which occurred near the dwelling house of defendant.

Counsel for appellant in brief have referred to only two questions which they consider good grounds for a reversal. One is the refusal to give written charges in substance that defendant was under no duty to retreat. This is upon the theory that he was within the curtilage of his dwelling. The other question goes to an objection to a certain feature of the argument of the solicitor for the State. We will later refer in detail to this contention. We have also examined the record for other questions and find none which need consideration.

With reference to the duty to retreat, we do not understand from the evidence that this killing occurred on the premises of defendant. As we interpret the evidence it occurred in the public road at the entrance to the driveway into the premises of defendant. The witnesses in the main refer to it as on the edge of the road in front of the driveway, or even with it. There was a photograph in evidence showing the location, and some of the evidence related to objects shown on it. It is not before us. In this state of the record we cannot say that it was the duty of the court to charge, certainly without hypothesis, that there was no duty to retreat; or that within the curtilage of the dwelling there is no duty to retreat. We do not know what aid the photograph would be on that subject.

There is nothing apparent in the trial, including the charge of the court, that there was any contention that this occurred on the premises of defendant where he resided so as to relieve him of the duty to retreat. So that we do not think there was error in refusing the two charges in question, which we will number one and fourteen.

The second contention made on behalf of appellant is the objection to an argument by the solicitor for the State as follows: "Don't you know if Earney Bland and Colonel St. John could have gotten witnesses to have proved the defendant's good character, they would have put them on the stand". The bill of exceptions also states that this remark was made in answer to argument of Mr. Bland, attorney for defendant. The defendant had testified as a witness in the case, and thereafter the State had proven by several witnesses that defendant's general character was bad. Defendant did not offer proof that his character was good.

The State's evidence of bad character was only impeaching in its effect and no objection was made to it. Forman v. State, 190 Ala. 22, 67 So. 583.

Reliance is had on that line of cases holding that no unfavorable argument of counsel can be made because of the absence of witnesses equally accessible to both parties. 6 Ala.Dig. 583, Criminal Law, k 721 1/2. But that principle does not serve to prohibit counsel from commenting on the failure of his adversary to produce evidence of the good character of his witness (especially when he is the witness), when impeaching evidence has been introduced, or when the comment is pertinent to answer an argument made by opposing counsel. Bardin v. State, 143 Ala. 74, 38 So. 833; Nicholson v. State, 149 Ala. 61, 42 So. 1015; Martin v. State, 18 Ala.App. 434, 92 So. 913; Earle v. State, 1 Ala.App. 183, 56 So. 32.

The remarks of the solicitor here in question are within that principle.

There is no error in the record which serves to reverse the judgment.

Affirmed.

ANDERSON, C.J., and GARDNER and BOULDIN, JJ., concur.

On Rehearing.

FOSTER, Justice.

We did not treat the ruling on motion for a new trial in our former opinion, for though counsel made reference to it in their brief it was not one of the two theories on which they declared in brief that they sought to effect a reversal. But we did then consider the motion, and on application for rehearing have given further consideration to it.

Defendant and his wife were the only eye witnesses, and their testimony relates an occurrence so unusual that the jury was probably authorized to discredit it, considering they both had a direct and material interest in the result, and the testimony impeaching defendant's character.

It is probably a fair inference that they had a sudden encounter without previous disagreement. But the nature of it and its details are known only to defendant and his wife. Defendant killed deceased with a deadly weapon, and intentionally, as we think the jury could infer. That raises a presumption of malice and unlawfulness, unless the circumstances and evidence rebut that presumption. 11 Ala.Dig., Homicide, p. 343, § 146, p. 345, § 151.

So that without credible evidence of the true facts and details that presumption would persist. If the jury had accepted in full the evidence of defendant and his wife, they would probably have acquitted him on the doctrine of self-defense. They might accept some of their evidence, but not all, or have been impressed they did not tell it all.

There was much evidence of the bad character of defendant, not contradicted.

The degree of unlawful homicide could not be reduced to manslaughter on account of the use of offensive words not accompanied with an assault or a threatened assault. 11 Ala.Dig., Homicide, p. 290, § 45.

This might be sufficient to reduce the offense to murder in the second degree, but not below that.

We do not sit here as jurors. The jury acted on the evidence, and the trial court refused to set the verdict aside. They might very well have concluded that no assault was made on defendant, but that they had a sudden quarrel, and on account of opprobrious words used by deceased, defendant shot him.

We cannot say that such a finding would not be supported in view of the legal presumptions. And it is not our province to pass on the extent of the punishment fixed by the jury, unless it, together with other circumstances, show that the jury acted on the case under the influence of some improper sentiment sufficient to show that defendant did not have a fair trial, for which the verdict should be set aside and a new trial granted.

Application for rehearing will therefore be overruled.

ANDERSON, C.J., and BOULDIN and KNIGHT, JJ., concur.

GARDNER THOMAS, and BROWN, JJ., dissent.

GARDNER, Justice (dissenting).

The conviction of this defendant of murder in the second degree, with imprisonment for a term of fifty-five years, to all practical purposes constitutes a life sentence.

Unless the testimony of defendant and his wife are given some degree of credibility, the circumstances of the killing are wholly speculative. Defendant and deceased had been friends for many years. No differences had ever arisen between them so far as this record discloses. Defendant could have had no motive in maliciously killing the deceased. The difficulty must have grown out of the kindly act of defendant in going, in the night, to the aid of deceased as he called at defendant's home for assistance as to his car. Unquestionably deceased did go to defendant's house and ask for aid. His car was "dead," and in a muddy road. Clearly too, defendant obligingly complied, and went on this fatal night to assist defendant in pushing his car. Deceased, their efforts failing, was upset and out of humor, and finally asked defendant to get his own car out and use it for the purpose. Defendant, insisting he could not handle his car well at night and that both cars would get in the mud, declined to do so, and his wife joined in this refusal. Defendant's version is that at this deceased became angry, used abusive language to him, with a slurring remark to his wife, struck and kicked him, and finally, when the single shot was fired that proved fatal, deceased was about to attack him with a car instrument of some character. Defendant and his wife are the only eye witnesses, and there is no evidence to the contrary. Defendant also gives explanation of the reason he had his pistol. But details need not be here given.

True the jury had the right to disbelieve the evidence of both of them. But the State offers nothing that would reflect upon the fact that the origin, at least of all of this trouble, was as stated by defendant. And the witnesses who testify to defendant's bad character (or most of them), admit defendant was honest and would tell the truth. Upon what theory his character was bad, they leave to speculation, and, indeed, the State's entire case for a conviction of murder is rested upon speculation.

The testimony of defendant and his wife, to my mind, has a ring of probability and reasonableness, and viewing the case from all angles, I am persuaded that in no event should a conviction be allowed to stand for the degree of homicide of which this defendant was convicted.

I recognize the caution that should be...