Osborn v. State

• Court: Alabama Court of Appeals
• Writing for the Court: RICE, Judge.
• Citation: Osborn v. State, 32 Ala.App. 105, 22 So.2d 538 (Ala. App. 1945)
• Decision Date: 27 March 1945
• Docket Number: 7 Div. 761.
• Parties: OSBORN v. STATE.

22 So.2d 538

32 Ala.App. 105

OSBORN v. STATE.

7 Div. 761.

Alabama Court of Appeals

March 27, 1945

Rehearing Denied May 8, 1945.

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

Wm. N. McQueen, Acting Atty. Gen., and Forman Smith, Asst. Atty. Gen., for the State.

The following excerpts from the oral charge were excepted to by defendant:

(1) 'You should first consider defendant's plea of self-defense, and if that plea is not sustained then you should convict the defendant of one of the four degrees of homicide charged in the indictment; first, murder in the first degree; second, murder in the second degree; third manslaughter in the first degree; and fourth, manslaughter in the second degree.'

2. 'If, on the other hand, you find that he was not acting in self-defense, as I have explained that to you, then it would be your duty to find the defendant guilty of one of the degrees of unlawful homicide as I have defined those degrees to you.'

RICE, Judge.

This case was tried and determined in the circuit court of Talladega County on January 17th 1943. And on the date--January 20th, 1943--of the sentence imposed in response to the judgment rendered on January 17th, 1943, appellant gave notice of an appeal to this court.

Motion for a new trial was duly filed, and overruled on April 9th 1943. Appeal bond was filed--and appellant released thereon--on April 30th, 1943.

In due course--the appeal being in all respects governed by the law as it exlisted prior to September 1st, 1943, the effective date of the Act of July 12th, 1943, abolishing bills of exceptions (Gen.Acts 1943, p. 423--Title 7, Section 827(1) Cumulative Pocket Part, Code 1940,)--appellant prepared presented, and had signed a bill of exceptions; and, likewise in due course, doubtless the appeal would have been submitted to this court in the reasonably prescribed time contemplated by the law that governed.

But appellant's able and distinguished counsel, led by the potent Lieutenant Governor of this State, conceived that the appeal might be governed by the law as made by this act of July 12th, 1943--effective September 1st, 1943--abolishing bills of exceptions. And they asked, and procured, a delay sufficient to enable them to submit the appeal under the provisions of this said act. As a consequence--the Court Reporter's transcript of the testimony not being filed until and before September 25th, 1944--the appeal was not submitted in this court until January 11th, 1945.

The exceedingly voluminous nature of the transcript leads us to believe that the Court Reporter is perhaps not to be censured. In fact, just who should be censured is not readily apparent.

But certainly we regard it as unfortunate, and highly detrimental to the administration of justice, that a case tried in January, 1943, and appealed, is not submitted in this court before January, 1945.

True, when the provisions of the above-cited act of July 12th, 1943, abolishing bills of exceptions, are better understood--or repealed--we may not expect a repetition of the unseemly delay that is here apparent. And, really, to us it seems clear--and we so hold and will act--that the instant appeal is governed by the law as it existed prior to, and independently of, the above-cited and of July 12th, 1943 (effective September 1st, 1943) abolishing bills of exceptions.

But in view of the confusion that has ensued following the enactment of this law abolishing bills of exceptions--as shown by the several decisions of our Supreme Court, and of this court, undertaking to construe same; and by the effort of our Supreme Court to clarify its terms by the promulgation on June 28th, 1944, of Supreme Court Rule 48, Code 1940, Tit. 7 Appendix (245 Ala. p. XXI), we, as indicated above, do not feel certain as to just who--if anybody--should be here held up to censure.

So we will proceed to consider the appeal--as indicated above, disregarding the transcript of the testimony filed in conformance with the act abolishing bills of exceptions; and using, as the basis of our remarks, the bill of exceptions hereinabove mentioned as likewise being filed in the cause.

Appellant was convicted of the offense of manslaughter in the first degree, and his punishment fixed at imprisonment in the penitentiary for the term of nine years and eleven months.

It was shown without dispute that he shot with a pistol and killed, at the same time, but not with the same shot, two policemen of the town of Childersburg, Alabama: one Albert DeLoach and one Austin Hammett. He was indicted for murder in the first degree, separately, for the killing of each of the two men.

The present appeal is concerned, only, with his killing of Austin Hammett.

Without pretending to make a detailed narration of the testimony, it may serve for clarity for us to here remark that DeLoach and Hammett, being on night duty, went into the cafe or restaurant owned and operated by appellant--and, incidentally, open for business continuously, day and night,--shortly before five o'clock, on a morning in the latter part of December, 1942.

While we believe, in view of the occupation in which they were engaged, it should not be said that they were trespassers, yet the legality of their mission in said cafe or restaurant is not at once apparent. Plainly they did not go in as customers; and, there being no disorder of any kind in progress there upon the occasion, it is not without question that they had no business at all therein.

However, the above may be, it seems they accosted there a girl--a customer--by the name of Mary--telling her in substance that if she did not leave town 'they would pick her up'--officer DeLoach doing the talking, and meaning, as is apparent, he would arrest her. Officer Hammett merely stood by, doing nothing, while DeLoach was telling Mary the things just mentioned.

Appellant, at first busy on the opposite side of the room, came over to where Mary was sitting, with DeLoach talking to her, and either did or did not interpose some remarks. He then returned to the place from whence he came--behind a counter running along the side of the room--with officer DeLoach--and Hammett--though Hammett was behind DeLoach, following him.

It seems without dispute that DeLoach, 'shaking his finger' in a threatening way toward appellant, told appellant, who was by this time on the opposite side of said counter facing DeLoach, something to the effect that 'if he said one more word he would have to put him under bond.'

From this point on the testimony is in hopeless conflict. That for the State was to the effect that, without more ado, appellant took his pistol from a shelf underneath the counter, and began shooting; pointing his gun at first directly at DeLoach, and them immediately at Hammett, who was then running toward the front door of the restaurant, where he went out on the street, and after going some 75 feet fell dead, shot in the back, and without ever having fired his own pistol at all.

DeLoach fell, mortally wounded, almost in the tracks where he stood at the moment appellant began firing. He died shortly thereafter.

Appellant's testimony was to the effect that DeLoach told him he would kill him; and that DeLoach brought his pistol up into shooting position, whereupon appellant procured his pistol as aforesaid and fired all the shots which he did fire directly at DeLoach; and that he fired no shot at all at Hammett.

None but a jury could unravel the conflicting testimony, and say just what did happen.

It is without dispute that the only pistol fired during the melee--to call it that--was the one fired by appellant.

It is without dispute that Hammett, who fell dead immediately on reaching the street where he fled while the shooting was in progress, was killed by a wound inflicted by a pistol shot in the back.

While appellant testified he did not 'intentionally shoot Mr Hammett,' yet he said that while he was firing at DeLoach--some four or five shots--Hammett, running to escape from the building, went between appellant and DeLoach, and circled in such a way that he could easily have been struck in the back by one of the shots. Hence our statement earlier in this opinion, with reference to appellant: 'It was shown without dispute that he shot with a pistol and killed, at the same time, but not with the...