Osborn v. State, 7 Div. 762.

• Decision Date: 26 June 1945
• Docket Number: 7 Div. 762.
• Citation: 32 Ala.App. 188,23 So.2d 14
• Parties: OSBORN v. STATE.
• Court: Alabama Court of Appeals

23 So.2d 14

32 Ala.App. 188

OSBORN v. STATE.

7 Div. 762.

Alabama Court of Appeals

June 26, 1945

Rehearing Denied Aug. 7, 1945.

J B. Sanford, of Talladega, and Handy Ellis, of Columbiana, for appellant.

Wm N. McQueen, Acting Atty. Gen., and John O. Harris, Asst Atty. Gen., for the State.

BRICKEN Presiding Judge.

Appellant admittedly killed Albert DeLoach, by shooting him with a pistol, and upon the trial of this case in the court below the jury returned a verdict finding him guilty of manslaughter in the first degree fixing his punishment at imprisonment for nine years and eleven months. Judgment of conviction was pronounced and entered, in accordance with the verdict of the jury, from which this appeal was taken.

Defendant relied upon self-defense, and insisted that he was wholly free from fault in provoking or bringing on the difficulty. The evidence shows without dispute that the homicide happened in appellant's place of business at an early hour in the morning. The defendant was on duty and conducting his place of business, which was a cafe in the town of Childersburg. The deceased, DeLoach, was a policeman of said town, and in company with another policeman entered the cafe belonging to defendant. It was without dispute that no disorder was or had been going on in the cafe, and the two police officers had no official duty to perform therein when they entered. The testimony also shows, when the police officers entered the cafe they went to where one Mary Thompson was sitting, on the left hand side of the cafe, about the middle of the building. She was a customer and was at the time drinking a cup of coffee. About that time appellant came from the rear out of the kitchen to a place on the right hand side of the cafe, just opposite where the officers were talking to this woman, Mary. The officers, or at least DeLoach, stood there and talked to Mary a few minutes. Then DeLoach left Mary, crossed over the room to where defendant was standing behind his counter near a coffee urn, with only the counter between them. The uncontradicted evidence shows that DeLoach was shaking his finger in defendant's face and saying something to him, and it was while the parties were in this position that the shooting began.

While talking to Mary, DeLoach told her that if she did not get out of town he was going to arrest her, he had no warrant of arrest and did not claim to have any. The evidence tends to show that defendant had not done a thing to DeLoach and had said nothing to him until DeLoach began shaking his finger in his face. Defendant's pistol was on the shelf just below the top of the counter behind which he was standing. When DeLoach fell, his pistol was on the floor near his outstretched hand. The woman, Mary, testified that the two officers had her down at the City Hall the night before, but for what reason it was not disclosed, but they told her they were going to get even with defendant.

When DeLoach was talking to defendant (Osborn) he did not tell him he had any warrant for his arrest or that he had violated any law, but did tell him to shut his mouth or he would put him under bond. Some of the evidence tended to show that when DeLoach crossed over from the left hand side of the cafe to the counter which separated him from defendant, Hammett followed him over there and was there in the vicinity of DeLoach when the shooting began, but started then running towards the front door.

Some of the testimony tended to show that both officers had their pistols in their hands in the cafe while the shooting was going on.

A portion of the statement of facts in appellant's brief reads as follows:

'The testimony for the defendant showed that while DeLoach was shaking his finger in defendant's face, he, DeLoach, drew his pistol, that defendant did not make any hostol move towards DeLoach until DeLoach had pulled his pistol, but when DeLoach pulled his pistol, defendant grabbed his pistol from his shelf from under the counter and the shooting began, and that the shooting was all over pretty quickly, and that both officers had pistols in their hands, and as stated, when they were done, the pitols were either in their hands or beside them. It was shown without conflict by several witnesses that about a week or ten days before the fatal difficulty, DeLoach, in the presence of Hammett, accosted defendant on the sidewalk when the latter was on his way back from the post office to his cafe, and told him that he had heard that defendant had been telling that they (the officers) had been sleeping in the booths in the cafe, and defendant was trying to get him fired off of his job, and when defendant denied this, DeLoach told him that if he heard of it any more he was going to kill defendant and ordered defendant to get on down the sidewalk and get in his place of business and stay there.

'Defendant testified that when DeLoach accosted him in the cafe, DeLoach told him that he was still messing with their business and was trying to get them fired, which defendant denied, and then DeLoach told him that he knew he had been doing that and that he had told him a few days before that if it happened again he was going to kill defendant and then cursed him with a vile oath and told him he was going to kill him, and that while DeLoach was making that statement, he was shaking his finger in defendant's face, and that DeLoach got his gun out and when DeLoach pulled his gun out, defendant grabbed his pistol up from under the counter on a shelf and began shooting, and that DeLoach snapped his pistol at him, but he did not know whether DeLoach ever shot or not, but he did not fire the first time it snapped; that he saw DeLoach fall. Defendant also testified that a few nights before the fatal difficulty he had walked out of his cafe early in the morning to get a breath of air and that officer Hammett was on the sidewalk some little distance from the cafe and that he asked Mr. Hammett how he was getting along and that Hammett told him it was none of his business and ordered defendant to get back in his place of business and stay there.

'When the officers went in the cafe on the morning of the shooting, there was no difficulty going on therein, no drinking, no disorderly conduct and nothing to call them there, and there was no pretense that they had any duties to perform in the cafe.'

Pending the trial several exceptions were reserved to the rulings of the court, some of which appear to be well taken. From the record it appears that upon arraignment the defendant plead 'not guilty,' and also, 'not guilty by reason of insanity.' During the trial defendant abandoned the plea of not guilty by reason of insanity, and made no effort of any nature to prove said plea, offered no evidence to that end, and said plea, as shown by the record, was withdrawn before the case was put to the jury.

The defendant testified in his own behalf, and upon his cross-examination, the State, over repeated objections and exceptions, was permitted by the court to interrogate him as to various whiskey cases against him in Tuscaloosa County alleged to have happened some five or six years ago, and as to the result of the trials in the whiskey cases. This portion of the cross-examination of the defendant as transcribed consumed about four pages of this record. Insistent and strenuous motions were made to exclude this testimony. Said motions were overruled.

The statute, Title 7, Section 434, provides, among other things a witness may be interrogated as to his having been convicted of a crime involving moral turpitude as affecting his credibility. Violation of the prohibition law does not involve turpitude. In our case of Moore v. State, 26 Ala.App. 607, 164 So. 761, 763, this court said: 'The inquiry of witnesses touching their former conviction for the offense of violating the prohibition law in order to impair the weight of their testimony and reflect upon their credibility...