Miller v. State, 1 Div. 41
| Decision Date | 05 February 1980 |
| Docket Number | 1 Div. 41 |
| Parties | Leilus O. MILLER v. STATE. |
| Court | Alabama Court of Criminal Appeals |
M. A. Marsal, Mobile, for appellant.
Charles A. Graddick, Atty. Gen., James F. Hampton, Asst. Atty. Gen., for appellee.
Manslaughter, first degree; seven years.
The sufficiency of the evidence was not raised in the present case by a motion to exclude, a request for the affirmative charge, nor by a motion for a new trial. The facts in the case are not complicated; therefore, only a brief statement regarding them will be made.
On July 1, 1978, Walter Duffy, James Buck, Vernon Ward and the appellant were sitting in appellant's front yard in the Orange Beach area conversing and drinking beer. All present were neighbors of the appellant, and all were over sixty years of age. Mr. Ward and the appellant had a disagreement over the cost of a long distance telephone call which Mr. Ward had made from appellant's telephone. Appellant settled the dispute by presenting the telephone bill to Ward, who then apologized. Appellant claimed that, during the dispute, he was threatened by Mr. Ward who drew a knife. Appellant went inside his house, obtained a revolver and went outside to rejoin the group. According to Duffy and Buck, appellant sat down, then stood up and fired twice, hitting Ward once. Appellant testified that, when he drew the gun, Duffy and Buck attempted to take it out of his hand, and, during the struggle, the gun discharged once, striking Ward fatally. The jury found appellant guilty of manslaughter in the first degree, setting sentence at seven years imprisonment.
I
The only issue raised on this appeal concerns the propriety of the prosecutor's remarks to the jury during closing argument. From the record:
The appellant insists that the argument was prejudicial and was an appeal to the jury's passion and prejudice.
In support of this contention, the appellant has cited Racine v. State, 290 Ala. 225, 275 So.2d 655; Atchison v. State, Ala.Cr.App., 331 So.2d 804.
The cases cited by appellant are clearly distinguishable from the present case. Atchison, supra, involved a comment in a robbery case which was directed to females on the jury panel. The argument in the present case does not relate to, as did the comment in Atchison, a subject entirely foreign to the robbery. In Atchison, a reference concerning...
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