Parsons v. State

• Decision Date: 22 January 1946
• Docket Number: 6 Div. 228.
• Citation: 25 So.2d 44,32 Ala.App. 266
• Parties: PARSONS v. STATE.
• Court: Alabama Court of Appeals

25 So.2d 44

32 Ala.App. 266

PARSONS v. STATE.

6 Div. 228.

Alabama Court of Appeals

January 22, 1946

Rehearing Denied Feb. 19, 1946. [Copyrighted Material Omitted]

Beddow, Ray & Jones, of Birmingham, for appellant.

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

The following charges were refused to defendant:

'12. The court charges the jury that if the jury believes from the evidence that the witness Lorraine Colts has testified falsely as to any material fact, the jury may in the exercise of its sound discretion, reject the entire testimony of said witness.'

'18. The court charges the jury that if the jury be convinced by the evidence and beyond all reasonable doubt that the defendant fired the shots alleged to have injured the witness Lorraine Cote but are at the same time not convinced beyond all reasonable doubt that the defendant did not fire said shots in self defense the jury would not be authorized to convict the defendant.'

'20. The court charges the jury that it is the law that if a man be suddenly set upon by an assailant in such manner and under such circumstances as that a reasonably prudent man would believe himself to be in danger of grievous injury to his life or to his limb without fault on his own part, and without opportunity to retreat, he is then justified to use such force as may be apparently necessary to repel his assailant even to the point of taking his life.'

'21. The court charges the jury that if the jury believe from the evidence that the defendant acted in self-defense at the time of the alleged assault, the jury will not convict the defendant.'

'24. If at the moment the shots were fired the circumstances were such that they would have impressed a reasonably prudent man, situated as the defendant was situated, with the honest belief that he was in danger of losing his life or of suffering serious bodily harm, and if at that moment there did not appear to the defendant a reasonable means of escape without increasing his danger, real or apparent, then you must find the defendant not guilty, unless the state has proven from the evidence beyond all reasonable doubt that the defendant was at fault in bringing on the difficulty.'

'A-4. The court charges the jury that if there be a reasonable doubt growing out of the evidence or lack of evidence as to whether or not any person assaulted the defendant and put the defendant in peril of his life or limb, the jury should give the defendant the benefit of such doubt in determining whether or not he has established his plea of self-defense.'

'A-5. The court charges the jury that if there be any reasonable doubt in the mind of the jury growing out of the evidence or the lack of evidence as to whether or not the witness Lorraine Cote or the witness Valco assaulted the defendant with danger to the life or limb to the defendant and fired any fatal shots in the course of the affray the jury should give the defendant the benefit of such doubt in determining whether or not he has established his plea of self-defense.'

'C. I charge you, gentlemen of the jury, that if you believe from all the evidence in this case, that the defendant honestly believed he was in imminent peril, or liable to receive great bodily harm from his assailant, then I charge you that the defendant had a legal right to act and protect himself from such apparent peril or harm even though no great bodily harm may have been actually intended toward him.'

'E. I charge you if you believe from the evidence that the defendant was free from fault in bringing on the difficulty, and you further believe from the evidence that he was in imminent danger of receiving serious bodily harm, then the defendant had a right under the law to use such force as would appear reasonably necessary to repel his assailant.'

'J. The court charges the jury that it is the law that defendant had a right to protect himself from real or reasonably apparent felonious assault upon himself by his assailant, and if, on considering the evidence or any part of it, when considered with the whole evidence, you have a reasonable doubt as to whether defendant was justified in defending himself from such assault, it would be your duty to acquit him.'

CARR Judge.

This is an appeal from a judgment of conviction in the circuit court for the offense of assault with intent to murder.

It is without dispute in the testimony that Mrs. Loraine Cote, the alleged injured person, was shot four or five times with a pistol and that some of the inflicted wounds were serious in effect. The evidence for the State supported the finding that the offense was without legal excuse or justification.

Appellant's version of the occurrence is accurately stated in his counsel's brief: 'He (appellant) was invited by Miss (Mrs.) Lorraine Cote to visit her room to discuss a business matter with regard to the collection of a sum of money due to him by her; that in response to that invitation he did go to her room and upon arriving, without any knowledge that she was, at that time, entertaining a male visitor, he knocked upon her door and was admitted to the room; that immediately upon his admittance to the room he was set upon by the lady's male visitor and brutally assaulted and beat about the head, and in the course of the melee was rendered unconscious; that during that time he did fire his pistol in self defense.'

The prospective jurors who answered on voir dire that they were deputy sheriffs and city firemen were not disqualified. The lower court was, therefore, not in error in refusing to challenge these men for cause. Leach v. State, 245 Ala. 539, 18 So.2d 289; Title 30, Sec. 55, Code 1940.

After the solicitor had read the indictment to the jury, appellant's counsel, in reply, enumerated the charges included in the indictment and stated the defendant's plea thereto. Upon objection of the State, the lower court denied the attorney the privilege to outline to the jury what he expected the evidence to show. We do not entertain the view that the trial judge abused his discretion to the injury of appellant in this ruling. Atlanta Life Ins. Co. v. Canady, 225 Ala. 377, 143 So. 561.

The alleged assault occurred in Mrs. Cote's hotel room. Soon thereafter a police officer came and found appellant lying on the floor with bruises on his head. The officer testified that the defendant appeared to be normal with the exception of being excited and that he arose from the floor and made a statement to witness. After the usual questions to ascertain if any inducements or hope of reward, etc., were offered and the answers were in the negative, over the objection of counsel, the officer was permitted to state what the defendant said. The point is taken that it is not sufficiently shown that the appellant, on account of his physical injuries, was mentally capable of knowing the contents and accuracy of his statement. We cannot concur in this contention. Appellant's condition at the time was properly before the jury for its consideration in weighing the purport and significance of the statement. The court correctly ruled that sufficient predicate had been based for its admissibility. McKinney v. State, 134 Ala. 134, 32 So. 726; Fincher v. State, 211 Ala. 388, 100 So. 657; Stone v. State, 208 Ala. 50, 93 So. 706.

A few hours prior to the time of the alleged assault the defendant, under an assumed name, rented a room on the same floor as the room occupied by Mrs. Cote. Some of the officers testified that soon after the shooting they searched appellant's room in the hotel and there found several articles, among them a letter and envelope addressed to Sgt. Joseph G. Cote, c/o Postmaster, Seattle, Wash. It was made known by the evidence that the sergeant was the injured lady's husband. Appellant admitted while testifying that he wrote the letter, but claimed it was done prior to the day in question. He denied he had the letter in his possession at the hotel.

The original letter and envelope are before us and are marked State's Ex. F and E respectively. The contents of the letter are:

'Brookside Ala

'June 27-44

'Dear Joseph. I reget to have to right you this but by the time you get this me and Lorine will be dead. She has treated me so dirty and you to. You will be better off without her. She is not true to you. I let her a loan a long time, till I saw her on five different times with another man. She has one she is in love with now, and I loved the girl so much but she just enjoyed punishing me. So it has to be this way. I hope you will forgive me. And I hope you the best of luck. And I hope you will find another girl that will be good to you

'I am at present E N Parsons but will be dead when you get this

'So good by and God bless you.'

Over general objections and 'too remote in point of time,' the exhibits were allowed in evidence. We hold properly so.

In Hall v. State, 208 Ala. 199, 94 So. 59, Justice Sayre gives convincing and logical reasoning in support of our view. It is true the communications in the Hall case were written by the defendant to the deceased; nevertheless, their contents bear striking similarity to the letter of instant inquiry.

It is not denied in the evidence in the case at bar that appellant and Mrs. Cote had related themselves amorously for several years prior to the occurrence in the hotel room. Clearly, the jury was entitled to have the statements contained in the letter for consideration, along with all the other testimony in the case. In criminal cases inquiry can be made into the conduct and assertions of the defendant prior to an assault if they shed light on the motives and preparations for committing the offense. Burton v. State, 115 Ala. 1 22 So. 585; King v. State...