McPhearson v. State
| Decision Date | 01 December 1960 |
| Docket Number | 2 Div. 406 |
| Citation | 271 Ala. 533,125 So.2d 709 |
| Court | Alabama Supreme Court |
| Parties | John Lewis McPHEARSON v. STATE of Alabama. |
deGraffenried, deGraffenried and deGraffenried, Tuscaloosa, J. Jos. Thompson, Butler and Johnston, McCall & Johnston, Mobile, for appellant.
MacDonald Gallion, Atty. Gen., and Jerry L. Coe, Asst. Atty. Gen., for the State.
The appellant, John Lewis McPhearson, was indicted by a grand jury of Choctaw County for the first degree murder of his wife, Irma Lee McPhearson.
Upon arraignment McPhearson pleaded not guilty and not guilty by reason of insanity.
His trial resulted in a verdict of guilty of murder in the first degree and his punishment was fixed at life imprisonment. Judgment and sentence were in accord with the verdict. McPhearson appealed to this court. Subsequent to the taking of his appeal, his motion for a new trial was overruled.
We have concluded after a careful and studied examination of the voluminous record that the trial court erred to a reversal in a certain respect during the course of the trial. Hence, we deem it unnecessary to burden this opinion with a treatment of the insistences made by the appellant to the effect that the trial court erred in overruling certain preliminary motions made by the appellant and in refusing to declare a mistrial because of the alleged misconduct of the audience attending the trial. We have no reason to anticipate that these questions will be presented on another trial.
Perhaps we should observe that the trial court did not abuse its discretion in refusing the appellant's request to examine each juror individually after the court had qualified the jury. The court advised the appellant that he could examine the jury as a whole and this procedure was pursued. Burns v. State, 226 Ala. 117, 145 So. 436. See Rose v. Magro, 220 Ala. 120, 124 So. 296; Alabama Clay Products Co. v. Mathews, 220 Ala. 549, 126 So. 869.
There is no claim that the defendant was entitled to an affirmative instruction or that the trial court erred in not granting a new trial on the ground that the verdict was not sustained by the evidence. In the absence of such contentions we think a brief summary of the evidence will suffice for the purposes of this opinion.
Irma Lee McPhearson's death was caused by a bullet which was shot from a rifle owned by the defendant. The shooting occurred on Thursday morning, January 29, 1959, at a farm owned by the McPhearson family, which is usually referred to as the Tom Everett place. It is located in rural Choctaw County several miles from the town of Silas, where the deceased and the defendant maintained their home.
The defendant is a member of a family with considerable business interests, including farming and timber operations.
The defendant's version of the shooting and the events immediately preceding it are summarized:
On the morning of the shooting he went to the woods soon after he arose. Within a short time he returned to his home where he picked up his wife. She was emotionally upset, so rather than go to Butler, the county seat, where they were to implement their plans for a divorce, he drove to the Tom Everett place for the purpose of getting some information needed in connection with a tree planting project. On the way to that place the defendant says that he and his wife discussed their divorce plans and that she was mad because he insisted on having custody of the children.
When they arrived at the Tom Everett place the defendant got out of the automobile and walked over some of the land. Mrs. McPhearson remained in the automobile. When the defendant returned he asked his wife to go walking with him. She made no effort to get out of the automobile so the defendant turned and walked away. He had proceeded down a path for a short distance before he heard his wife get out of the automobile and begin to follow him down the path. As she was walking down the path she accused the defendant of entertaining the opinion that he was a 'big shot.' She told him she was not going to let him have the children. As he turned towards his wife he saw that 'she had the gun on me.' He says he grabbed 'the gun,' which was a 30-30 Winchester rifle.
The defendant's testimony as to what occurred after he grabbed the rifle is shown by the following questions and answers:
'
The defendant says that after the ritle discharged and he saw that his wife was injured he picked her up and then concluded that she was dead. He became frightened. He placed her back on the ground and left her body and the rifle near the place of the shooting. He says that he went back to Silas for the purpose of informing his mother of what had occurred and then to Butler to inform his brother. His mother, according to the defendant, was not at home and his brother was busy.
As going to show that the shooting was not accidental, the State showed that on Friday morning, January 30th, the day after the shooting, the defendant returned to the Tom Everett place and after placing his wife's body in an old well he covered it with twelve feet of dirt which he scraped into the well with a bulldozer which he had brought that day to the place of the shooting from a point a number of miles away and did not advise his mother and brother or the authorities of his wife's death until Monday evening, February 2, 1959.
The State sought to show that the defendant killed his wife because of his infatuation for another woman, one Mary Robertson.
It was not reversible error for the trial court to refuse to permit defense witness J. S. Dearmon to answer the question, 'It was not an uncommon thing for him [defendant] to carry his gun or rifle in his car or jeep going into the woods, * * *.' This witness was permitted to state that on several occasions he had seen a gun or rifle in defendant's car and jeep.
Reversible error does not appear in the action of the court in sustaining the State's objection to the following question asked defense witness Dearmon by the defendant, 'I will ask you if knowing that reputation for truth and veracity, would you believe him [defendant] on his oath?' As to this ruling, it is sufficient to observe that at the time this question was asked the defendant was not entitled to offer evidence of his reputation for truth and veracity. He had not been, or attempted to be, impeached as a witness by the State, either by the introduction of evidence of bad character on his part or of statements made by him out of court contradictory of his testimony on the trial, for he had not yet appeared as a witness. Funderberg v. State, 100 Ala. 36, 14 So. 877; Baugh v. State, 218 Ala. 87, 117 So. 426; Lassiter v. State, 35 Ala.App. 323, 47 So.2d 230.
It was not reversible error for the trial court to refuse to permit defendant's mother to answer a leading question as to whether she had arranged or planned to plant trees on the Tom Everett place. She was permitted to testify later as to the steps which had been taken in that connection.
The State introduced, without objection, three letters to which the name of the defendant was signed. They were date February 2, 1959, and were addressed to business establishments where the defendant had maintained charge accounts. In the letters the addressees were advised that the charge accounts of the defendant were not to be used in the future by anyone other than himself; that he would not be responsible 'for any debts or obligations of anyone other than myself.' The letters had been typed by the defendant's mother either at the request of the defendant or of his brother, a lawyer. After stating, in effect, that she might have signed the defendant's name to the letters, it was not reversible error for the State to be permitted to show that she did not have 'a power of attorney' to sign the defendant's name. It was later established that the signature on the letters was that of the defendant. These letters were written, apparently, before the defendant...
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...on other grounds, 408 U.S. 234, 92 S.Ct. 2282, 33 L.Ed.2d 317); Thigpen v. State, 49 Ala.App. 233, 270 So.2d 666; McPhearson v. State, 271 Ala. 533, 125 So.2d 709. The trial court allowed the defense to submit questions 'to the court for its consideration one day before the qualifying of ju......
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Johnson v. State
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