Metcalf v. State, 6 Div. 372

• Decision Date: 19 August 1958
• Docket Number: 6 Div. 372
• Citation: 40 Ala.App. 25,108 So.2d 435
• Parties: James Phillip METCALF v. STATE.
• Court: Alabama Court of Appeals

Page 435

108 So.2d 435

40 Ala.App. 25

James Phillip METCALF v. STATE.

6 Div. 372.

Court of Appeals of Alabama.

Aug. 19, 1958.

Rehearing Denied Sept. 9, 1958.

Jenkins & Cole, Birmingham, for appellant.

John Patterson, Atty. Gen., and Jas. W. Webb, Asst. Atty. Gen., for the State.

CATES, Judge.

Metcalf was indicted November 11, 1955, for the murder (in the first degree) of Johnnie Mulkin. The trial held January 9 through 13, 1956, resulted in a verdict of guilty of second degree murder with his punishment fixed at ten years in the penitentiary. Judgment was rendered accordingly.

On February 9, 1956, a motion for new trial was filed and presented to the trial judge and passed to March 9, with mesne continuances until November 8 of that year when the motion was heard and overruled.

The court reporter suffered a heart attack delaying the transcript of evidence of some 500 pages until January 28, 1957; the record proper did not reach us until March 28, 1957. In view of the size of the record, we allowed further time for briefs with the result that the case was not argued and submitted until the statutory call of the Sixth Division on December 5, 1957.

September 10, 1955, Mr. William A. Adams, a deputy sheriff, was called out to investigate the death of Mulkin at the latter's place of business near the county line on Highway 78 in the western part of Jefferson County.

Arriving at Johnnie's Place about 7:40 P.M., he found Mulkin's corpse with four bullet wounds: four entrance, two exit. Of the four, one went in the right side of the face, one in the right chest, one in an arm and an entrance would into the heart region which the State sought to show came from the same bullet that went through Mulkin's arm.

A search of Mulkin failed to produce any deadly weapon.

Adams talked to Metcalf that night at the Jefferson County jail. After a proper showing of voluntariness in the inducement and ambient circumstances, Adams stated:

'* * * he made a statement that the son-of-a-bitch ought to have been killed and I am glad the bastard is dead. That is what he said at that time in relation to the killing.'

Metcalf had a cut place in his head. The deputies took him to Jefferson Hillman Hospital to have it treated. On the way from the jail, Metcalf told Admas:

'* * * the reason he killed Johnny was Johnny caused his wife to have a miscarriage; said that Johnny had come down to Mr. Metcalf's house and told his wife some things and caused her to have a miscarriage.

* * *

* * *

'* * * that Mr. Metcalf had been going with Johnny's wife, Anne Mulkin. * * *

* * *

* * *

"That I went up there to advise him or make him quit telling my wife those things.' We asked him about what time he went to Johnny's place that afternoon. He said around 5:00 or 5:30 in the afternoon. We asked him how he went into Johnny's place, through the front or through the back. He said he went in through the back door to keep Johnny from seeing him.'

The voluntariness of these latter inculpatory statements was established by preliminary enquiries as was also done regarding a later statement made by Metcalf to Admas when Metcalf had been admitted to the hospital:

'He said that he went up there to see Johnny, and went in the back door to keep Johnny from seeing him, and then he asked us to send him some roses at Kilby because he knew that he would get the 'hot seat."

Cross-examination elicited from Adams (inter alia) the following:

'Q. Did he tell you he was sitting in that rear booth and Johnny came back there and started beating him in the head with a stick? A. Yes, sir, I believe he did.

'Q. Did you find a stick there? A. Yes, sir, we did.

'Q. Did you find--is this (indicating) the stick that you found? A. Yes, sir.

'Q. And where did you find this stick? A. That was in Mr. Mulkin's hand.

'Q. Where he was lying on the floor? A. Yes, sir.

'Q. Was he grasping this stick by the handle or was he grasping it by the ground end when he had it? A. By the ground end.

* * *

* * *

'Q. I show you here (indicating) a fountain pen gun and ask you whether or not that was on Mr. Mulkin's person? A. Yes, sir, I saw Mr. Butler take that.'

Redirect testimony brought out that Mulkin's 'pen gun' shot tear gas.

The next State witness was Mrs. Sarah Anne Dye, who worked in Mulkin's place. She saw Metcalf there the day of the killing; about 5:00 P.M., he was at the juke box. Mulkin was at the cash register, whence the witness testified it was not possible for one to see the juke box.

Mrs. Dye served Metcalf a shot of whiskey. Then he moved to another booth at the back of the dance hall. She saw a gun in the booth beside him.

There were some men sitting at a table which was between Metcalf's booth and the door through which he said he expected Mulkin to enter. Mrs. Dye stated:

'A. Well, when he told me to get these fellows to move, he said there might be a shooting, and he didn't want innocent parties getting hurt.

'Q. Didn't want what? A. Didn't want innocent parties getting hurt.

* * *

* * *

'* * * he said that Johnny was 'gunning' for him and he was 'gunning' for Johnny, and he was afraid of Johnny Mulkin.'

The trial judge quite correctly pointed out that this was unclear and could not be taken as an unequivocal threat.

A deputy sheriff, Mr. Tom Ellison, took the witness stand and related substantially the same account of the confessions as Deputy Adams had given. He also related a conversation of Metcalf's about Metcalf's gun.

The defense, on cross-examination, brought out:

'Q. Now, when you first saw Mr. Metcalf, what was his condition in so far as--what was his appearance? A. Well, he was highly intoxicated. I didn't----

'Q. Where was he? A. In the County Jail.

'Q. And describe his appearance as far as blood and abrasions together you saw on him? A. He had a laceration, I would say about an inch and a half long or maybe an inch, right in the top of his head.

'Q. Any blood on him? A. No, sir, he had a little blood around this cut place was the only blood that I saw.

'Q. Was there any blood on his face? A. No, sir.

'Q. Do you know whether his face had been washed or not? A. Well, I found out that it hadn't been washed.

'Q. Any signs where he had wiped any blood off of his face? A. Not that I noticed, no, sir.'

Ellison was asked whether he heard that Mulkin killed people; objection was sustained. Another question excluded on the State's objection went to Mulkin's killing a man named J. P. Creel.

Error is claimed in the following excerpt:

'Q. Have you heard it said that other people had been killed there in that place of business?

'Mr. Rogers: Now, we object to that.

'The Court: Yes, sustained.

'Mr. Jenkins: The character and reputation of the place of business itself, Your Honor.

'The Court: I will sustain the objection.

'Mr. Jenkins: We reserve an exception.

'Q. All right, have you heard it said that Johnny Mulkin had killed other people there at that place or near that place? A. I reviewed an investigation----

'Q. Just answer that question. A. That is what I am fixing to tell you. I reviewed an investigation that was shown----

'Mr. Jenkins: Now, Judge, I am entitled to a responsive answer.

'The Witness: That is what I am trying to tell him.

'Q. Have you heard that Johnny Mulkin had killed men there at that place?

'Mr. Rogers: Judge, he is not limited to 'Yes' or 'No.'

'Mr. Jenkins: Yes, sir, I am limiting him.

'A. This investigation that I made shows----

'The Court: Have you heard----

'Q. Have you heard that he was killed? A. --that Johnny killed a burglar out there in his own home after the fellow had shot him.

'Mr. Jenkins: If Your Honor please, that is not responsive and I move to exclude that answer.

'Mr. Rogers: We are willing for it to go out now.

'The Court: All right, let it go out.

'Mr. Jenkins: And I want to say this: That it certainly shows the feeling of the witness. He could have answered 'Yes' or 'No.'

'Mr. Rogers: And it shows the feeling of the attorney, if a man was killed there in burglarizing the place, and he is leaving the impression he wantonly shot a man down----

'The Court: Yes.'

Also, Ellison identified as belonging to Mulkin a .38 caliber revolver with two notches on the handle; the gun apparently was kept under the counter near the cash register.

Mr. J. O. Butler, Deputy Coroner of Jefferson County, testified that in his opinion the gunshot wounds were the cause of Mulkin's death.

On Butler's cross-examination, the trial judge excluded any questions as to records or reports in the coroner's office relating to persons killed by Mulkin. The ruling was made with the jury withdrawn:

'The Court: All right, let it be shown, though, by the record that the court has permitted testimony as to violence and turbulence--character or reputation of the deceased or rather----

'Mr. Jenkins: Well,----

'The Court: --wait a minute. Don't interrupt me.

'Mr. Jenkins: All right.

'The Court: --rather his reputation for violence and turbulence and his reputation as a pistol toter and a knife toter and anything of that kind, all reputation, the court has admitted it.

'Mr. Jenkins: What witness, Judge?

'The Court: Wait a minute. It is in the record now, but as to any killings that he may have alleged to have committed of somebody else, that isn't a part of the law, as I see it, and I am not going to admit it.

'Mr. Jenkins: I am not going to ask him about his reputation. I am going to ask him about his reputation for pistol carrying.

'The Court: You can ask it, but you can't show it by the Coroner's records.

'Mr. Jenkins: You mean to tell me----

'The Court: Yes, sir, I mean to tell you what I have told you, and I don't mean to procrastinate and fool around with it any more.

'Mr. Jenkins: We reserve an exception.

'The Court: I don't want to get stern. Just bring the jury in and let's proceed with the trial.'

Upon the return of the jury, the defendant's counsel continued with the cross-examination:

'Q. Mr. Butler, do you have a subpoena--do...