Pannell v. State, 8 Div. 923

• Decision Date: 06 December 1977
• Docket Number: 8 Div. 923
• Citation: 356 So.2d 219
• Parties: Jack PANNELL v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 219

356 So.2d 219

Jack PANNELL v. STATE.

8 Div. 923.

Court of Criminal Appeals of Alabama.

Dec. 6, 1977.

Rehearing Denied Jan. 24, 1978.

Ralph E. Slate, Decatur, for appellant.

William J. Baxley, Atty. Gen. and Milton E. Belcher, Asst. Atty. Gen., for the State.

LEIGH M. CLARK, Retired Circuit Judge.

Appellant was indicted and tried for murder in the first degree. A jury found him guilty of manslaughter in the first degree and fixed his punishment at ten years imprisonment. He was sentenced accordingly.

On the night of December 21, 1975, a group of close to a dozen men and women, old and young, had assembled at the home of Doc Callahan in rural Morgan County. Their main occupation at the time was drinking whiskey and beer. According to the evidence of at least six witnesses for the State, defendant had an argument with William Jack Dempsey and one or two others present about some whiskey and struck Dempsey, knocking him to the floor, and then kicked him several times according to some of the witnesses. It was promptly noticed thereafter that Dempsey was dead. It was generally agreed with those present that they would say that Dempsey died of a heart attack. Word went out and the coroner of Morgan County came to the scene. He was informed that deceased had died of a heart attack, and no other person there at that time told him otherwise. A county investigator went to the scene the next day and was told that Dempsey had died of a heart attack.

Two weeks after the burial of Dempsey, his body was exhumed and an autopsy was performed by Dr. James M. Buttrem of the Alabama Department of Toxicology and Criminal Investigation. He testified that he found nine bruises on the body as a whole, four on the head; an extensive subarachnoid hemorrhage covering large areas of the brain which extended into "the cervical or neck and spinal canal"; that in his opinion death was due "to subarachnoid hermorrhage as a result of one or more blunt force injuries delivered to the upper right neck region in the back."

Some of the eyewitnesses were related to defendant. Some stated that their fear of him was the reason they expressly or impliedly reported that Dempsey died of a heart attack and had not been beaten by defendant.

Defendant testified that he had become drunk and had passed out at Callahan's house that night and had no knowledge whatever of the events immediately preceding Dempsey's death and did not learn of his death until his body had been removed. He emphatically denied that he had hit or kicked Dempsey. There was ample evidence to support defendant's testimony that he was intoxicated to some extent, but there was no witness to support his contention that he did not hit or kick Dempsey.

At the threshold on appeal, appellant raises a question, which was never raised on the trial or even on defendant's motion for a new trial, as to bias or prejudice of the trial judge against defendant, and alleges that it was the duty of the trial judge to recuse himself from the trial of the case. He says in effect that such bias or prejudice is shown in the action of the trial judge in the following instances:

(1) Some rulings adverse to defendant,

(2) Some statements made by the trial judge to defendant at the time he was sentenced, and

(3) The determination by the trial judge of the amount of the bond on appeal.

As to (1), our attention is not called to anything, and we find nothing, in any of the rulings of the trial judge that indicates any bias or prejudice against defendant.

As to (2), in sentencing the defendant in accordance with the punishment fixed by the jury, which was beyond the power of the trial court to change, the trial judge reminded the defendant of his former appearances before the judge and of cases in which defendant had been previously prosecuted that...