Peoples v. State, 6 Div. 267

• Decision Date: 17 April 1952
• Docket Number: 6 Div. 267
• Citation: 58 So.2d 599,257 Ala. 295
• Parties: PEOPLES v. STATE.
• Court: Alabama Supreme Court

Page 599

58 So.2d 599

257 Ala. 295

PEOPLES v. STATE.

6 Div. 267.

Supreme Court of Alabama.

April 17, 1952.

Rehearing Denied May 15, 1952.

Matt H. Murphy, Jr., Birmingham, for appellant.

Si Garrett, Atty. Gen., and Robt. Straub, Asst. Atty. Gen., and Robt. P. Bradley, Montgomery, of counsel, for the State.

STAKELY, Justice.

Samuel E. Peoples was indicted for the offense of unlawfully and with malice aforethought killing Clyde Gilmer Woods by striking him with a hammer. The defendant pleaded not guilty and not guilty by reason of insanity. As a result of the trial of the cause the defendant received the death penalty. The appeal comes here under the automatic appeals act.

Since the case must be tried again, as will hereafter appear, we shall not set forth tendencies of evidence in detail, but only so much of the tendencies of the evidence as appears to be necessary for an understanding of the present decision.

At about dark on the evening of February 11, 1951, the appellant went to the home of Mrs. Lorene McCombs near Lovick in Jefferson County, Alabama, and borrowed a hammer with the statement that he wanted it to fix a flat. The hammer was loaned to him and he asked for a paper bag in which to put the hammer. A wrapper off of a loaf of bread was found and he placed the hammer in the wrapper. He then left in a cab which was waiting outside with another person in it and since he heard that the children of Mrs. McCombs wanted to go to church that night, he promised to come back and take them to church. It was a Sunday evening.

The appellant returned to the home of Mrs. McCombs by himself in a cab and two of the boys in the family got in the back seat of the cab and Doris McCombs, one of the girls in the family, who had known the appellant for about two and a half years occupied the front seat. They were driven to the church and the boys got out and went into church. Appellant told Doris McCombs that he was taking her to Michael Woods to straighten out something. Michael Woods appears to have been a friend of her older sister. When they got back near her home, however, Doris McCombs got out of the car and entered her home. Her mother discovered that she had blood all over the back of her skirt and on the back of her legs and socks. Since she was not hurt in any way, her mother immediately called the officers. Some hours later in the evening the body of the deceased was found just off of a dead-end road about a half mile from the Woodland Club, where he had been seen earlier in the evening with the deceased. The head of the deceased had been mashed in by what, according to the Coroner, appeared to have been a blunt instrument. Near the body was found the hammer which was identified as the hammer which he had secured from the home of Mrs. McCombs. Later in the evening the cab was found abandoned about 7 to 10 miles from the place where the body was found. The inside of the cab was spattered with blood. The defendant was taken into custody by the officers at about 3 o'clock in the afternoon of February 12, 1951, and according to tendencies of the evidence, confessed to the killing. At the time he was taken into custody he had in his possession the billfold of the deceased with a driver's license therein for Clyde Woods.

I. Mrs. Zula Peoples was called by the court as a court witness on a request of the state on the statement that she was the wife of a brother of the defendant. She was asked if she remembered a conversation between herself and appellant on the afternoon of February 12, 1951, when the appellant came by her home. While she recalled that there was a conversation, she testified that she did not remember such conversation exactly, except, 'Well, I just spoke to him, 'Good Evening'.' She recalled that later on some men came out to see her but she couldn't say who they were and further testified that they took down in shorthand a statement made by her. She stated that she did not recall whether her recollection as to her statement could be refreshed or not by reference to the written transcript claimed to have been made of her statement. She was then handed a paper containing a transcript of what she is claimed to have said in the conversation. A number of questions were asked her as to what she said in the conversation after she was asked to refresh her memory by reference to a written transcript of the alleged conversation. To most of these questions she stated that she didn't remember or did not know. For example, she was asked the following question to which she made the following reply.

'Q. Now, did I ask you this question: 'Whether he made the statement to you that he had killed the taxi driver last night and that he had another taxi driver with him and that when he got through using him for such purposes as he wanted, he was going to kill him?' Did you answer that? A. I don't know.'

The witness Mrs. Zula Peoples was also asked the following question to which she answered 'No'.

'Q. Then I will ask you if I didn't ask you this question: 'Q. In connection with his statement as to what he had done, did he tell you who it was or the circumstances?' and if you didn't make the answer: 'He said he didn't know. I said, 'Son, you will kill your mother.' He said, 'Where is she?' I said, 'She has gone to see Mrs. Wood.' He said, 'Mrs. Wood?' I said, 'Yes,' he said, 'Well, who is that?' I said, 'That is the man's wife, the cab driver that is missing; that is his wife she has gone up there to see.' He said, 'That is who the _____' and called him that again. So when he read the paper he repeated it again and he said, 'That is who that S B was,' and he threw the paper down, a lady's paper next door. I had to go next door to borrow the paper, and he walked over there with me and stood there and read it, and that was all there was in it, and threw the paper down. He said, 'That is who the S B was'.' Didn't he make that statement to you?'

After the witness had been interrogated in the manner described, J. W. Dickinson, a Court Reporter, was then put on the stand and he was allowed to testify that he had made a transcript of the conversation with Mrs. Zula Peoples and a number of officers and that she made answer to the officers in his presence, but not in the presence of the defendant. We illustrate this testimony by the following questions put to him and his answers thereto.

'Q. Was this question asked: 'Did he make the statement to you that he had killed the taxi driver last night and that he had another taxi driver with him, and that when he got through using him for such purpose as he wanted to, he was going to kill him?' Was that question asked? A. Yes, sir.

'Q. And did she answer, 'Yes, sir, he sure did'? A. She did.'

We also illustrate the testimony of the court reporter by the following question propounded to him and his answer thereto.

'Q. Then did I ask her this question: 'In connection with his statement as to what he had done, did he tell you who it was or the circumstances?' and did she reply: 'He said he didn't know. I said, 'Son, you will kill your mother.' He said, 'Where is she?' I said, 'She has gone to see Mrs. Wood.' He said, 'Mrs. Wood?' I said, 'Yes.' He said, 'Well, who is that?' I said, 'That is the man's wife, the cab driver that is missing; that is his wife she has gone up there to see.' He said, 'That is who the _____' and called him that again. So when he read the paper he repeated it again and he said, 'That is who that S B was,' and he threw the paper down, a lady's paper next door. I had to go next door to borrow the paper, and he walked over there with me and stood there and read it and that was all there was in it, and threw the paper down. He said, 'That is who the S B was.'' Was that answer made to that question at that time? A. Yes, sir, it was.'

In Anderson v. State, 35 Ala.App. 111, 44 So.2d 266, 272, the court said:

'It is within the sound discretion of a trial judge, in the interest of truth and justice, to call to the stand and examine, or permit to be examined by both parties, any witness who may be able to shed light upon the issues, the court being careful to preserve an attitude of impartiality. * * *'

See also Hunt v. State, 248 Ala. 217, 27 So.2d 186; 16 C.J. 846. The fact that Mrs. Zula Peoples was called as a court witness did not preclude the state from seeking to impeach her testimony. 70 C.J. p. 795; Tillman v. State, Fla., 44 So.2d 644; Brown v. State, 91 Fla. 682, 108 So. 842; Wharton's Criminal Evidence, Vol. III, § 1390, p. 2276; Wigmore, Vol. III, § 918, p. 442.

The basis of allowing a party to attack the credibility of a witness not called by him is that the witness has...