Miller v. State, 6 Div. 137

• Decision Date: 07 March 1972
• Docket Number: 6 Div. 137
• Citation: 261 So.2d 447,48 Ala.App. 28
• Parties: Dorcie MILLER v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 447

261 So.2d 447

48 Ala.App. 28

Dorcie MILLER v. STATE.

6 Div. 137.

Court of Criminal Appeals of Alabama.

March 7, 1972.

Rehearing Denied March 28, 1972.

Roy D. McCord and J. A. Hornsby, Gadsden, for appellant.

MacDonald Gallion, Atty. Gen., and Herbert H. Henry, Asst. Atty. Gen., for the State.

PER CURIAM.

The appellant was tried in the lower court and convicted of murder in the second degree. His sentence was fixed at thirty years imprisonment. From this judgment and sentence he brings this appeal.

The facts were set out in appellant's brief and supplemented by those set out in appellee's brief. Appellant's brief states the following:

'On the 3rd day of August, 1969, appellant had a minor altercation with one Tilton Wood, the brother of the deceased Millard Wood at Lonzie Holloway's store on U.S. Highway Number 231 near the Strawberry Community in the extreme northern part of Blount County, Alabama. Appellant followed the truck which Tilton Wood was driving in his car south on U.S. Highway Number 231 toward the home of the deceased, Millard Wood. Between Lonzie Holloway's store and the home of the said Millard Wood, Tilton Wood pulled off the road and stopped and as the Appellant rode past him fired three shots at Appellant's automobile. Appellant drove on south and Tilton Wood passed him and pulled off into a road by the side of the home of the deceased, Millard Wood. Appellant drove just past Millard Wood's home on U.S. Highway 231 and stopped and got out of his car, at which time the deceased came running across his garden toward the Appellant while Tolton Wood approached toward the spot where the Appellant stood along the road. Shots were fired at the Appellant by Tilton Wood and the Appellant fired shots both at Tilton Wood and the deceased, apparently striking the deceased who died and whose body was found to contain bullet wounds. Thereafter, Appellant proceeded to his home and later gave himself up to the Sheriff's Department of Cullman County, Alabama, who delivered him to the Sheriff's Department of Blount County, Alabama.'

The additional facts contained in appellee's brief are as follows:

'Witness Tilton Woods stated on direct examination that on the 3rd day of August, 1969, he stopped at his brother's house and that he saw the Appellant drive his car onto the shoulder of Highway 231 approximately 240 feet from the deceased's house. The witness further stated that he saw the deceased walk toward the Appellant; that deceased did not have anything in his hand; that he saw the Appellant pointing a rifle at the deceased and that he fired 3 or 4 times. When the witness saw the deceased fall he 'made a break going to him.' The Appellant then turned on the witness and shot at him after which time the Appellant left in his automobile. The witness further stated that he observed the deceased where he fell and that he saw no weapons on or near his body.'

On arraignment the appellant pleaded not guilty and later the day of the trial added the further plea of not guilty by reason of insanity as a part of his defense. However, insofar as this court can determine the plea of insanity seems to have been abandoned, since no testimony in support thereof was introduced.

The motion of the appellant to set aside the verdict of this case was overruled. This motion appears within the part of the transcript certified by the Clerk of the Court. In addition thereto, the appellant has filed an assignment of error not within in the sealed portion of the transcript and, therefore, not a part of the record proper, but the court has considered these assignments of error ¹ along with the brief filed by appellant as an aid to its understanding of the appellant's contentions and argument for error.

The assignments are numbered and the court's response thereto are numbered insofar as it is practicable:

Assignment of Error No. 2: Objection to the questions as to Tilt Woods being shot by Dorsey Miller came after answer. There was no motion to exclude; hence, no error. Furthermore, Tilton Woods testified earlier that the trouble he had with the Millers was with Doris, another Miller brother, and we think it was Doris to whom the witness Frances Woods referred. Linda Woods was allowed, without objection, to testify that Doris Miller had at one time shot Tilton Woods in the leg and that he had been crippled ever since.

Assignment of Error No. 3: Objection and motion to exclude testimony of Sheriff J. C. Carr. Answer to questions objected to regarding the character of millard Woods was not responsive but this error was not of a reversible nature. The witness later testified, after proper predicate was laid and without objection, that the reputation of the deceased for peace and quietude was good.

Assignment of Error No. 4: Testimony of Trooper Shafer about an arrest of appellant in July was not responsive to question of prosecuting attorney as to arrest in August, the time of the killing, and the court was in error in overruling the motion to exclude. The court, however, apparently changed its ruling when the matter was again called to its attention by another motion to exclude by appellant and the motion was granted. In view of the wide range of the testimony no error of a harmful nature appears.

Assignment of Error No. 5: There is no merit in appellant's argument that the court erred in allowing State's witness Billy Ray Nix to testify that to the best of his knowledge Dorcie Miller, the appellant, said to him on the night of August 3 that...