Nickerson v. State
| Decision Date | 12 May 1921 |
| Docket Number | 5 Div. 787 |
| Court | Alabama Supreme Court |
| Parties | NICKERSON v. STATE. |
Appeal from Circuit Court, Tallapoosa County; S.L. Brewer, Judge.
Briggs Nickerson was convicted of murder in the first degree, and he appeals. Affirmed.
Thos L. Bulger, of Dadeville, for appellant.
Harwell G. Davis, Atty. Gen., and Lamar Field, Asst. Atty. Gen., for the State.
The defendant, Briggs Nickerson, was indicted, tried, and convicted of murder in the first degree. His punishment was fixed at imprisonment in the penitentiary for life.
The state files a motion to strike this case from the docket, as no appeal is shown by the record to have been taken by appellant within the time and in the manner required by law. Appeals in criminal cases must be taken within six months after sentence or confession of judgment. If taken at the time of judgment, it must be by an entry of record in the case in the minutes of the court that defendant appeals from the judgment with or without suspension of judgment, as he may elect. If taken afterwards, it must be done by filing with the clerk a written statement signed by the defendant or his attorney stating that the defendant appeals from the judgment. This written statement of appeal must be filed with the clerk within six months after sentence or confession of judgment. If the appeal is taken by the written statement the transcript should contain a copy of it with the date of filing with the clerk. Section 7, Acts 1919, p. 84, approved February 15, 1919.
The defendant was sentenced on the 2d day of October, 1920. The minutes or orders of the court in this case show no entry indicating that defendant appealed from the judgment. There is no written statement in the record signed by the defendant or his attorney filed with the clerk within six months after October 2, 1920, the date of the sentence, as the law requires.
The transcript shows certificate of the clerk, that defendant did take an appeal from said judgment, and that notice of it was issued and served on the solicitor for the state of that circuit on October 25, 1920. This does not show the manner in which the appeal was taken, but shows it was taken within six months after sentence.
The motion to strike the case from the docket was made after it was submitted. The defendant had no opportunity to ask for certiorari to complete the record to show that the appeal was taken in the manner required by law. It appears from the certificate of the clerk that an appeal was taken within the time required by law. When the motion to strike is made after the case is submitted on its merits and there is a certificate of the clerk in the record showing an appeal was taken within the time the law allows, the court will presume it was also taken in the manner the law directs. The motion is refused. Acts 1919, pp. 85, 86, § 7, approved February 15 1919; Brigman v. State, 46 Ala. 72; section 2837, Code 1907.
The defendant, Briggs Nickerson, killed Clayton Templeton by shooting him with a pistol on July 13, 1920, in Tallapoosa county, at a sawmill near Jackson's Gap.
The evidence for the state tended to show that defendant went to the sawmill on the day of the fatal difficulty, where the deceased was working, and "told him he wanted to talk to him." Templeton said "he did not have time," and defendant replied, "by G___ he would." Templeton had a hammer. The defendant ran off about 50 feet, stopped, pulled his pistol, and shot deceased, and then went back towards deceased. Defendant shot him twice or three times. Two balls entered the back, and one entered the chest. Deceased died immediately. The state's theory was that defendant was prosecuted by deceased about two weeks before the homicide for public drunkenness and using profane language in the presence of females. The defendant's passions were aroused by the prosecution, and he made threats against deceased.
The evidence for defendant tended to show that he went to the saw mill to see Lon Vaughan, a negro who worked there, on some business. He spoke to Templeton, the deceased, asked him, "How are you this afternoon?" and deceased replied, "'What are you doing now; you have got no business down here; get away from here,' and he reached and got a hammer." Defendant told him "he wanted to speak to this negro a minute." Deceased then threw the hammer at defendant, and defendant dodged the hammer, ran and fell; then deceased came up to defendant and started to strike him with a "cant hook" while he was down, and defendant then shot him two or three times.
The state on rebuttal offered testimony tending to show that deceased did not throw the hammer at defendant, that defendant did not fall down, and that deceased never had or attempted to strike him with the "cant hook."
Two or three weeks before the fatal difficulty the defendant and the deceased met; and the state, over defendant's objection and exception, was allowed to prove the following conversation between them: The defendant said to deceased, "Go on, you s____ of b____, I will see you again." Then deceased turned and looked around and defendant then said, "I will work 40 years in the penitentiary and give $4,000 to get to kill you, *** you s____ of b____," and deceased turned around and said, "That is right where you ought to be." Several witnesses testified to the above conversation between the defendant and deceased. The defendant objected to the testimony of each witness. The court overruled the objections, and defendant duly excepted and moved to exclude the answers and reserved an exception to the court refusing his motion.
These declarations of defendant to the deceased two weeks prior to the commission of the alleged offense were properly admitted by the court. The expressions contained evidence of ill will or malice of defendant toward the deceased. These statements of defendant were in the nature of threats. They were made in his presence, direct to him. They were admissible to show the hostility, malice, or criminal intent of the defendant toward the deceased. By it the motive of the defendant is illustrated. It is also admissible on the issue as to who was the aggressor in the fatal difficulty. Ex parte State, 181 Ala. 4, 61 So. 53; Stitt v. State, 91 Ala. 10, 8 So. 669, 24 Am.St.Rep. 853; Underwood v. State, 179 Ala. 10, 60 So. 842.
The difficulty took place at the mill. The defendant on direct examination testified, "I did not go there to see Mr. Templeton [deceased]; I went there to see Lon Vaughan." Counsel for defendant then asked witness, the defendant, this question: "For what purpose?" The state objected to the question; the court sustained the objection, and defendant excepted. Witness further testified "that he went home, went down the road, saw Lon Vaughan down there at the mill," and Attorney for defendant then asked him this question: "What was it?" The state objected, the court sustained the objection, and defendant excepted. His business with the negro Lon Vaughan would shed no light on the fatal difficulty. He was allowed to testify that he had business with Lon Vaughan. His business with Vaughan called for motives or intention or purpose in going to the mill that were uncommunicated and objectionable. The court committed no error in sustaining objection of state to the questions. Gibbs v. State, 156 Ala. 70, 47 So. 65; Pate v. State, 162 Ala. 32, 50 So. 357.
The court did not err in refusing to allow Mrs. Nickerson to answer this question asked her by the attorney for defendant "I will ask you if you requested the defendant, Briggs Nickerson, to go by the sawmill and see Lon Vaughan about the horse trade between you and him." The defendant without objection had testified that he went to the mill to see Lon Vaughan on business. He stated he "had some unfinished business with Lon Vaughan that I went to see him about." The horse trade between Mrs. Nickerson, as indicated by the question, was immaterial to the issues in this case. It also called for hearsay evidence and was...
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