Page v. State

• Decision Date: 04 October 1960
• Docket Number: 8 Div. 701
• Citation: 41 Ala.App. 153,130 So.2d 220
• Parties: Tracy PAGE v. STATE.
• Court: Alabama Court of Appeals

Page 220

130 So.2d 220

41 Ala.App. 153

Tracy PAGE v. STATE.

8 Div. 701.

Court of Appeals of Alabama.

Oct. 4, 1960.

Rehearing Denied Nov. 29, 1960.

Howell T. Heflin, Tuscumbia, for appellant.

MacDonald Gallion, Atty. Gen., and Paul T. Gish, Jr., Asst. Atty. Gen., for the State.

PRICE, Judge.

The appellant, Tracy Page, was convicted of manslaughter in the first degree under an indictment charging him with first-degree murder. He was sentenced to the penitentiary for three years.

On the night of May 15, 1957, appellant shot Dan Madden in appellant's cafe in the City of Sheffield. Death followed almost immediately.

The evidence tends to show that Madden came into the cafe with some other men, sat down at a counter and ordered beer on credit. After defendant refused to extend credit, he again asked for beer, and was served, and after drinking it he ordered more. Defendant told Madden he would not give him credit, that before ordering more beer he must pay for that already consumed. The argument continued into a rest room and when they came back into the cafe Madden shoved the defendant against some drink cases. Madden returned to the counter, began cursing defendant and picked up a soft drink bottle. In the meantime, Page had told Madden repeatedly to go home and not cause trouble. Billy Warren, a customer in the cafe, persuaded Madden to go outside, and after Madden walked away Warren returned to the cafe. Madden reappeared inside the door of the restaurant and again cursed the defendant, daring him to come outside. Defendant then went into the kitchen, picked up a pistol, and started toward the front of the cafe. As he approached the place where Madden was standing, Madden threw the bottle at the defendant. Some of the defense witnesses testified the bottle hit the defendant and knocked a cap off his head. The pistol fired immediately and Madden fell in the street, several feet from the door of the cafe.

According to the coroner's testimony, one bullet entered Madden's shoulder from the rear and came out through his neck. This bullet caused his death. Another bullet grazed his head.

A statement made by the defendant in writing to the police shorty after the shooting was introduced in evidence. In this statement defendant said:

'When I started toward the front of my place where Madden was he threw the bottle at me and I dodged the bottle and he turned and ran out the door and I shot him and he fell about 15 feet out in the street. I shot at him three times.'

There was also testimony by the state that the defendant made oral statements to the coroner and to the police in which he said he dodged the bottle and it didn't hit him; that Madden was in the door when he threw the bottle and as Madden turned to run defendant started shooting.

Defendant testified that immediately following the shooting he though he had dodged the bottle, but the next day he had a sore place on his head and realized he must have been hit. The defendant and his witnesses testified Madden was facing the defendant when the gun fired. Defendant further stated that he did not state to the officers that he shot Madden as he was running from the cafe.

Mr. James L. Mays testified he has been a licensed mortician since 1932; that he is the coroner of Colbert County and has held such office since 1940; that he has had occasion to examine a great many bullet wounds of various types and has had the opportunity of observing entrance and exit wounds. The witness testified that when a bullet enters the body it makes a clean round hole and when it comes out of the body it makes a ragged, jagged hole; that the hole in defendant's back was a smooth round hole and the hole under the chin was twice as large and was ragged; that it was his opinion both holes were made by the same bullet and that the one in the back was the entrance hole and the hole under the chin was the exit wound.

This testimony was objected to on the grounds that the witness was not sufficiently qualified to testify as an expert and that it had not been shown that the witness had ever observed a person as he was actually being shot so as to determine which were the entrance and which were exit wounds.

In Wilson v. State, 31 Ala.App. 21, 11 So.2d 563, 565, it is said:

'The criterion for admission of expert testimony is that the witness, by study, practice, experience or observation as to the particular subject, should have acquired a knowledge beyond that of ordinary witnesses. 6 Ala.Dig., Criminal Law, k478 * * *.

'And whether a witness is shown to possess the requisite qualifications of an expert is a preliminary question largely within the discretion of the court.'

Defense counsel argues in brief in Rikard v. State, 15 Ala.App. 497, 73 So. 992, and Rohn v. State, 186 Ala. 5, 65 So. 42, the expert witnesses allowed to express opinions as to entrance and exit wounds were physicians, while here the witness was an undertaker and the county coroner, and as such was not qualified as an expert witness.

It is true that the mere fact that a person is an undertaker or coroner does not qualify him to give the testimony of instant concern, but by his preliminary examination the witness here was shown to possess the necessary qualifications to testify as an expert. Hicks v. State, 247 Ala. 439, 25 So.2d 139; Phillips v. State, 248 Ala. 510, 28 So.2d 542; Odom v. State, 253 Ala. 571, 46 So.2d 1. We find no abuse of the court's discretion in admitting the witness's evidence. To further illustrate our view that defendant's contention that only a medical expert is qualified to testify, we call attention that in the Rohn case, supra, the court said [186 Ala. 5, 65 So. 43]:

'* * * it was clearly competent for the state to prove that bullet wounds are characteristically different at the points of entry and exit, respectively, and what that difference is; and anyone who has often observed and examined such wounds is a competent witness thereto.'

In Wilson v. State, supra, a member of the State Toxicological Department was shown 'to be sufficiently qualified to give his opinion as to the entrance and exit wounds on the body of the victim.' In Lovejoy v. State, 33 Ala.App. 414, 34 So.2d 692, it was held that a police officer was qualified to testify concerning entrance and exit wounds.

We find no merit in appellant's contention that the trial court erred in sustaining the state's objection to this question propounded on cross-examination to the witness Mays:

'Q. I will ask you this, Mr. Mays, will the fact that a gun has pits in its barrel and it fires a bullet will that bullet when it enters the human body leave a more ragged hole than a bullet that is fired from a pistol which does not have pits in its barrel?'

It was not shown that the witness was qualified to testify as an expert on the subject of firearms or ammunition. The fact that he was shown to be familiar with entrance and exit wounds on the body would not suffice to qualify him as an expert on ballistics. Furthermore, there was no evidence tending to show that a pistol with pits in its barrel was used in the shooting of deceased.

The witness Mays was asked this question on cross-examination:

'Q. Isn't it entirely possible that the deceased Dan Madden could have been shot from the front and the bullet would have glazed his head and turned him around, is that possible?'

The trial court properly sustained the state's objection to this question. It called for the mere conclusion of the witness, and was invasive of the jury's province.

The state's witness Bates, a Sheffield policeman, testified deceased was lying 'eleven good long steps' from the door of the cafe. Photographs were introduced in evidence and the witness placed an 'x' mark on one picture to indicate the location of the body. On cross-examination he testified he measured the distance by stepping it on the night of the killing, and two or three times afterwards. He further stated that as a witness in a hearing in court on June 17, 1957, he testified the body was lying about 30 feet from the cafe door. He was then asked if this question was propounded to him at the hearing,

'Q. You never did measure it yourself?', and if he replied: 'A. No, I didn't measure it.'

The witness answered:

'I didn't measure it with no tape, I stepped it off, which is not accurate either way.'

Defense counsel thereupon asked the witness:

'Q. Well, now, Mr. Bates, did you at any time in that proceedings ever say anything at all about stepping it off?'

The state's objection to this question on the ground that it was 'illegal, irrelevant and not the proper way of impeaching,' was sustained. In Brown v. State, 79 Ala. 61, it is said:

'A witness may be impeached, not only by proving that, at other times, he has made statements contradictory of, or inconsistent with those he makes on the trial, but also by proving that, on a former occasion, and under circumstances when it was his duty to state the whole truth, he omitted in his statement facts to which he testifies on the trial.'

In Morse v. State, 27 Ala.App. 447, 173 So. 875, 877, the following appears:

'Defendant's counsel, on cross-examination, has a legal right to cross-examine a state's witness as to whether or not he testified to a certain thing on the preliminary trial, regardless of whether or not it is shown that he was interrogated relative to same on the preliminary trial. Hixon v. State, 223 Ala. 10, 134 So. 458; Shirley v. State, 144 Ala. 35, 40 So. 269; Pearce v. State, 226 Ala. 436, 147 So. 617; Montgomery v. State, 2 Ala.App. 25, 56 So. 92.'

We are of the opinion that whether the witness failed to testify on the former hearing that he had stepped the distance was immaterial, and that the evidence sought to be elicited by the question was not so contradictory of his testimony on the present trial as to be impeaching. If the court's ruling was erroneous it was without injury to defendant. Supreme Court Rule 45, Code 1940...