Myers v. State

• Decision Date: 23 February 1960
• Docket Number: 8 Div. 493
• Citation: 119 So.2d 602,40 Ala.App. 617
• Parties: Oliver MYERS v. STATE.
• Court: Alabama Court of Appeals

Page 602

119 So.2d 602

40 Ala.App. 617

Oliver MYERS v. STATE.

8 Div. 493.

Court of Appeals of Alabama.

Feb. 23, 1960.

Rehearing Denied April 5, 1960.

Starnes & Starnes, Guntersville, for appellant.

MacDonald Gallion, Atty. Gen., and Jos. D. Phelps, Asst. Atty. Gen., for the State.

PRICE, Judge.

Appellant was convicted of manslaughter in the second degree under an indictment charging murder in the second degree.

On January 8, 1957, Carlton Eaton received a shotgun wound on his left leg and thigh. Upon arrival at the Guntersville City Hospital he was found to be in extreme shock from loss of blood. He was treated in the Guntersville Hospital until January 11, at 2:50 P.M., when he was transferred to the Veterans Administration Hospital in Birmingham. He was in critical condition when he reached the Veterans Administration Hospital. His leg was amputated that day and he died January 14th. The death certificate recites the condition directly leading to death as gas gangrene of the left leg due to gunshot wound occurring six days prior to death, with bilateral pneumonia as a condition contributing to death but not related to the disease causing death.

According to the evidence the deceased and defendant, Oliver Myers, were brothers-in-law. The Eaton family breakfasted at the Myers home on the morning of the shooting which occurred around 2:00 P.M., at the home of deceased.

Barbara Eaton, deceased's daughter, who was eleven years old when her father was killed, testified an argument between her mother and aunt and her uncle and father took place at the Myers home, but she couldn't remember whether there was an argument between deceased and defendant on that occasion. Barbara and her mother testified defendant came to the Eaton home with a shotgun later in the day. Deceased and defendant wrestled over the gun and Myers had Eaton down on the floor and was on top of him with the gun barrel across his mouth when Mrs. Eaton attempted to pull Myers off her husband. Defendant slapped and shoved her back across a chair, whereupon she struck him with an iron poker, causing his head to bleed. Defendant then went out into the yard or road and began shooting toward the house. Several shots hit the house, one hit a front window, passing through another window on the side of the house. Another hit a door facing. Photographs purporting to show where shots had struck the hosue were introduced in evidence.

After firing several times at the house defendant drove away, saying he would be back. Deceased's widow testified that after defendant drove away she also left the house and did not return home that day.

Barbara testified Myers later returned to the Eaton home, and asked Mrs. Myers, who was there then also, 'where is that half-brother of yours,' Barbara stated she ran to John Hodge's pasture and while still in the pasture she heard a shot and heard more shots after she reached the Hodge barn. The barn was as far from her house, 'as over across the street.' For the record, appellant's counsel estimated, 'that's approximately 200 feet or more.' Barbara further testified that while she was in the Hodge's barn she saw her father come out of their house and heard him tell, 'Uncle Oliver he wanted to tell him something and he was mad.' Oliver Myers fired a shot and her father fell in the yard. After seeing her father fall she went to the Hodge house and defendant came there and brought a gun back. He said, 'I have killed a man,' and asked John Hodge to go with him to get James Hard to take her father to a doctor, but Mr. Hodge didn't go. Two nights later she saw her father in Guntersville Hospital and subsequently saw his body. She testified on cross examination that this was the first time she had made a statement and that she did not testify at the preliminary hearing.

John D. Hodge testified Oliver Myers came to his home with a single barrel shotgun on the afternoon of January 8th. His head was bleeding from a bad cut. He told witness, 'That they had beat him up.' Mrs. Hodge dressed his head and when he left he took Mr. Hodge's double barreled gun from its rack, and drove away in the direction of the Eaton home. Some twenty minutes later he returned the gun and told witness he had shot that boy and was in trouble. The voluntary character of the defendant's statements was sufficiently shown.

James Hard testified Oliver Myers came to his home on the afternoon in question and stated Mr. Eaton had been shot and asked witness to take him to the hospital. Mr. Hard found deceased lying in his front yard. His leg was bleeding and he was unconscious.

The defendant did not testify. The evidence in his behalf was directed toward showing that deceased's wife was intoxicated on the afternoon of the shooting, and sought to prove that it was impossible for Barbara Eaton to have seen the front of the house where the shooting was alleged to have taken place, from the pasture or barn at the Hodge place. John D. Hodge stated on cross examination that only the roof and back porch of the Eaton house were visible from his barn. On redirect examination he said that from a certain position in his pasture the front of the Eaton house and road in front of it could be seen. Defendant also introduced proof of his good character.

Counsel insists in brief that the evidence was insufficient to prove the corpus delicti, because '(1) the state did not offer the testimony of any investigator or officer of the law; (2) the state did not offer nor produce any alleged murder weapon nor empty shotgun shells; and (3) the state further failed to show by the daughter, wife, coroner, doctor or any other party or parties that either or any of them ever saw the dead body of Carlton Eaton.'

It is not required that the corpus delicti be proved by the testimony of an officer of the law, nor that it be established by the introduction of the alleged murder weapon. We regard the testimony as sufficient to authorize the jury to conclude that defendant shot the deceased and that the shot produced his death. It is not denied that deceased died in the hospital six days after the shooting, moreover, deceased's wife testified he died and Barbara stated she saw her father's body.

It is further insisted that proof of death was sought to be established by a purported death certificate not shown to be under seal, and, 'If the certificate was not under seal, it was not admissible for any purpose.'

Title 22, Section 42, Code 1940, as amended, provides:

'The state registrar, upon request, shall supply to any applicant entitled to same a certified copy, under the seal of his office, of any record registered by him under provisions of this chapter, * * *. Any such copy of any record in the custody of the state registrar, when properly certified by him, shall be prima facie evidence in all courts and places of the facts therein stated.' See also Title 7, Section 386, Code 1940.

Copied into the transcript of the evidence, as state's Exhibit 7, is what purports to be a 'Certificate of Death,' signed by 'R. V. Klemme, Assistant Registrar.' The certificate contains a 'Medical Certification,' with the name 'H. P. Singletary, M. D.,' affixed thereto. The death certificate was certified by 'Ralph W. Roberts, State Registrar,' countersigned by 'Olivia McNair, Designated Bureau Clerk.'

Although the typewritten copy does not recite that the certificate was under seal, at the time of its introduction the state's attorney announced to the court: 'There is a seal, too.' No ground of objection questioned the genuineness of the document. The single objection to the admissibility of the certificate was: 'The doctor who treated the man at the time of his death and who made the certificate is within the subpoena powers of this court. That's the highest and best evidence.' The certificate was properly received in evidence. Section 386, Title 7, Code 1940; Section 42, Title 22, Code...