Payne v. State

• Decision Date: 30 August 1954
• Docket Number: 8 Div. 739
• Citation: 261 Ala. 397,74 So.2d 630
• Parties: Joe Ed PAYNE v. STATE of Alabama.
• Court: Alabama Supreme Court

Page 630

74 So.2d 630

261 Ala. 397

Joe Ed PAYNE v. STATE of Alabama.

8 Div. 739.

Supreme Court of Alabama.

Aug. 30, 1954.

The following charges were refused to defendant:

'9. I charge you gentlemen of the jury that the word deliberate means done in a cool state of the blood, and not done in heat of passion engendered by a lawful or just provocation; and if you believe from the evidence that the defendant acted in the heat of passion engendered by a lawful or just provocation and not in a cool state of blood, then under no circumstances can you convict the defendant of murder.'

'14. The court charges the jury that a person charged with a felony should not be convicted unless the evidence excludes to a moral certainty every reasonable hypothesis but that of guilt, no matter how strong the circumstances are they do not come up to the full measure of proof, which the law requires, if they can be reconciled with the theory that the defendant is innocent.'

'18. The court charges the jury that they must believe beyond a reasonable doubt that the deceased's name was Howard Kennamer before you can convict the defendant.'

'21. The court charges the jury that if there is one single fact proved to the satisfaction of the jury which is inconsistent with the defendant's guilt, this is sufficient to raise a reasonable doubt, and the jury should acquit him.'

'24. The court charges the jury that the probability that some other person may have done the shooting is sufficient to create a reasonable doubt of the guilt of the defendant, and therefore for an acquittal.

'25. The court charges the jury that if they believe from the evidence that the fatal shot which took the life of Howard Kennamer was fired by Charlie Payne and without the knowledge, connivance, or assent of this defendant, then the jury must find this defendant not guilty.'

'30. The court charges the jury that if you believe from all the evidence beyond a reasonable doubt, that defendant and deceased were in the act of firing pistols at each other and defendant was free from all fault in bringing on the difficulty and that another person had previously inflicted mortal wounds on the deceased without knowledge or connivance on the part of the defendant, then the defendant is not guilty.'

'B. I charge you gentlemen of the jury that under the evidence in this case you will be justified in finding that any acts which may have been committed by the defendant were committed in the heat of passion.'

The following charge was given for the State:

'2. The court charges the jury that if a deadly weapon is used, the law infers an intent to kill, or to do grievous bodily harm; and if the circumstances do not show excuse, justification, or immediate provocation, the presumption of malice is conclusively drawn; and a deadly weapon is not one a blow from which would ordinarily produce a death, but one from which as it was used in the particular case, death would probably result.'

No attorney for appellant.

Si Garrett, Atty. Gen., and Robt. Straub, Asst. Atty. Gen., for the State.

LAWSON, Justice.

Howard Kennamer was shot to death on December 10, 1952, in the store of Archie Russell in the Elon community, Madison County, Alabama. Joe Ed Payne was jointly indicted with his son Charles for the first degree murder of Kennamer. On motion of Joe Ed Payne, a severance was ordered and he was tried separately.

The jury returned a verdict of murder in the second degree and fixed punishment at imprisonment in the penitentiary for a term of twenty-five years. Judgment was in accord with the verdict. His motion for a new trial having been overruled and denied, Joe Ed Payne has appealed to this court.

The appellant was represented by counsel of his choice at arraignment and on the trial below, but he is not represented in this court by counsel and hence no brief has been filed in his behalf.

However, the filing of a brief is not essential to our consideration of an appeal by a defendant in a criminal case. Johnson v. State, 257 Ala. 644, 60 So.2d 818; Hymes v. State, 209 Ala. 91, 95 So. 383.

Section 389, Title 15, Code 1940, provides:

'In cases taken to the supreme court or court of appeals under the provisions of this chapter, no assignment of errors or joinder in errors is necessary; but the court must consider all questions apparent on the record or reserved by bill of exceptions, and must render such judgment as the law demands. But the judgment of conviction must not be reversed because of error in the record, when the court is satisfied that no injury resulted therefrom to the defendant.'

It has been said that the statute quoted above, when construed in pari materia with others, makes the right of appeal in criminal cases one of substance, imposing on the court a duty to search the record for errors and if the question reserved is of substance which might have affected the result, it is of no importance that the appellant or his counsel has not argued the question in a brief. Wesson v. State, 238 Ala. 399, 191 So. 249.

The State has filed a brief which treats with a few of the questions presented for review.

We will first consider the rulings made by the trial court on the defendant's preliminary motions.

Before entering upon the trial, the defendant sought the permission of the court to withdraw his plea of 'not guilty' previously interposed in order that he might file a plea in abatement. See § 279, Title 15, Code 1940. Such permission was denied. The defendant thereupon filed his plea in abatement which the trial court struck on motion of the State. Reversible error does not appear in this action of the trial court. Whittle v. State, 205 Ala. 639, 89 So. 43; Whitehead v. State, 206 Ala. 288, 90 So. 351; Wimbush v. State, 237 Ala. 153, 186 So. 145. See Owen v. State, 255 Ala. 354, 51 So.2d 541.

The trial court did not err in refusing to quash the venire of jurors drawn and summoned for the trial of the defendant. There was no showing of fraud on the part of the jury commission in filling the jury box or in drawing or summoning the jurors. Wimbush v. State, supra.

Two persons listed on the venire failed to appear, although duly summoned. These persons had not been excused from appearing and, whether summoned or not, their failure to appear was no ground for a continuance or for quashing the venire. § 67, Title 30, Code 1940; Brooks v. State, 248 Ala. 628, 29 So.2d 4.

Reversible error was not committed by the trial court in declining to grant a continuance at the request of the defendant or to put the State upon unsworn showings of two persons summoned as witnesses by defendant, but who were shown to be without the State by the return of the sheriff. Williams v. State, 224 Ala. 6, 138 So. 291.

The trial court did not err to a reversal in refusing to grant a continuance in order that counsel for defendant might institute mandamus proceedings against the jury commissioners. See Maund v. State, 254 Ala. 452, 48 So.2d 553.

The defendant was clearly not entitled to an affirmative instruction and the evidence fully supports the verdict of the jury, hence there is no occasion to set out the evidence in detail. However, we will briefly summarize the evidence so as to give a better understanding of the questions hereafter treated.

There had been bad feeling between the deceased and the members of the Payne family for several months. The deceased had been convicted a short time prior to the killing for the shooting of another son of appellant and the evidence tends to show that threats made by him to kill members of the Payne family had been communicated to them.

There was a lot of shooting in the store of Archie Russell on the evening of December 10, 1952. The defendant, Joe Ed Payne, was armed with a .45-caliber automatic pistol, while his son Charles had a .38-caliber Smith and Wesson Special snub-nose revolver. The deceased was carrying a .38-caliber Smith and Wesson Special 'long barrel' revolver.

Russell's store where the shooting occurred is twenty feet wide and thirty feet long. It faces south. There is an aisle across the front of the building and one on each side, so that the counter is described as having the shape of a horseshoe, the opening being at the back or north end of the store.

The deceased arrived at the Russell store around six o'clock on the evening of the killing. He and Archie Russell were standing in the front of the store on the east side when the defendant and his son Charles entered. The deceased was facing the back of the store and Archie Russell was facing toward the front. The only other person present at the time was Mrs. Russell and she was standing in the west aisle at the rear or north end of the store.

According to the State's evidence, the defendant and Charles Payne entered the Russell store at approximately the same time. The defendant turned to his left and proceeded toward the back of the store, walking down the west aisle. His son, Charles Payne, turned to his right and followed Archie Russell down the east aisle toward the rear of the store. Charles Payne passed within a few feet of Howard Kennamer, but neither spoke.

The evidence for the State tends to show that at about the time that Archie Russell had reached the rear of the store and had turned toward the front in order to go behind his counter, Charles Payne whirled with his pistol drawn and he and Howard Kennamer, the deceased, began shooting at each other at approximately the same time. Archie Russell and his wife both testified that they could not say who fired the first shot. Charles Payne, who testified as a witness on behalf of his father, stated that it was the deceased who fired the first shot, which hit him before he turned. The defendant did not testify in his own behalf.

Charles Payne was shot at least seven times within a period of a few seconds after the first shot was fired. He fell to the floor, unable to continue shooting. The deceased, after he...