Petty v. State

• Decision Date: 02 December 1958
• Docket Number: 4 Div. 363
• Citation: 110 So.2d 319,40 Ala.App. 151
• Parties: James A. PETTY v. STATE.
• Court: Alabama Court of Appeals

Page 319

110 So.2d 319

40 Ala.App. 151

James A. PETTY v. STATE.

4 Div. 363.

Court of Appeals of Alabama.

Dec. 2, 1958.

Rehearing Denied Feb. 17, 1959.

Ben H. Lightfoot, Luverne, for appellant.

John Patterson, Atty. Gen., and Wm. C. Younger, Asst. Atty. Gen., for the State.

The following charge was refused to defendant:

'No. 8. The Court charges the jury, that the bare fear of the commission of the offense, to prevent which the defendant used a deadly weapon, is not sufficient to justify it; but the circumstances must be sufficient to excite the fears of a reasonable man, and the attacking party must have acted under the influence of such fears alone. It is not necessary, however, to justify the use of a deadly weapon that the danger be actual. It is enough that it be apparent danger; such appearance as will induce a reasonable person in defendant's position to believe that he was in immediate danger of great bodily harm. Upon such appearances the party may act with safety; nor will he be held accountable, though it would afterwards appear that the indication upon which he acted was wholly fallacious, and that he was in no actual peril. The rule in such a case is this: What would a reasonable person, a person of ordinary caution, judgment, and observation, in the position of the defendant, seeing what he saw, and knowing what he knew, honestly believe from the situation and these surroundings. If such reasonable person, so placed, would have believed himself in imminent danger, then the defendant would be justified in believing himself in such peril, and in acting upon such appearance.'

HARWOOD, Presiding Judge.

This appellant, James A. Petty, was indicted for murder in the first degree for the death of Virgil S. Sasser.

His trial resulted in a verdict and judgment of guilty of manslaughter in the first degree.

Appellant's motion for a new trial was overruled, and an appeal was perfected to this court.

The evidence presented in the court below tended to show that at the time of the killing the appellant was a sergeant in the army stationed at Fort Benning, Georgia, and that his wife and children were residing in Crenshaw County, Alabama.

On the day of the killing the appellant had driven to Crenshaw County, we gather unexpectedly.

Not finding his wife at home, he began a search for her. His brother-in-law, Coston Lynton, volunteered to take him where his wife was. They twice went to Berry's Place, but the appellant did not find his wife on these visits. On the third visit however the appellant went through a room back of the bar, and opened a door into another room. This room turned out to be a bed room. There the appellant found his wife on a bed with the deceased, she being unclothed from the waist down.

As to what happened then we excerpt the following from the testimony of Mrs. Petty, who testified as a witness for the defense:

'Q. All right, now, when your husband, James Petty, walked in that door that night what was the first thing that was said or done? A. Well, I was lying facing the door----

'Q. You were facing the door and you saw him first? A. I saw him and it scared me, it like to have scared me to death, and I hollered, 'James.'

'Q. You hollered, 'James?' A. Uh huh.

'Q. All right, what did Sasser say, if anything, at that time? A. Well, he was facing me and he turned over and he said, 'Shoot,'--and he mentioned the gun, and----

'Q. Did he mention his gun? A. Yeah, uh huh.

'Q. Well, did Sam Sasser have a gun there? A. Yes, sir, we had it in there on the bed with us.

'Q. He had a gun? A. We did have a gun.

'Q. And he mentioned something about his gun? A. Uh huh.

'Q. Well, then what did James Petty do at that time? A. He was just standing there, he didn't say a word.

'Q. Well, did he start shooting? A. Yes, he started shooting.'

According to the appellant, when he discovered his wife and Sasser on the bed he stood there 'a little bit,' he did not know just how long. His wife called his name, 'and this other man hollered, 'where is my gun.' There was a gun laying on the bed at the bed where I was standing.'

The appellant testified he did not remember anything that happened after that, until his wife asked him to do something for her, as she was bleeding.

It might be well to note here that no weapon was found in the bed room after the shooting, nor was it shown that any one had removed a pistol therefrom after the shooting.

Mr. Ira Thomas, then a police officer for the City of Luverne, testified that he arrested the appellant at hospital in Luverne. At that time the appellant stated that he had killed Sasser, and was ready to go. The appellant at this time gave Mr. Thomas a pistol which he obtained from the front seat of an automobile. Two shots had been fired from the pistol.

Some nine character witnesses testified to the appellant's good reputation in general, and also his good reputation for peace and quiet.

William A. Butler was presented as a witness by the State.

Among other things Butler testified that he was in Berry's Place at the time of appellant's visits. He further testified that when the appellant started through the door that could lead to the bed room, he and Coston Lynton left Berry's Place and walked a short distance away. The witness heard two shots fired, one shot being fired as they were leaving the building. Coston Lynton reentered Berry's Place first, and called to the witness. The Solicitor then asked this witness how long it was before he went to the scene after Lynton, and he stated it was not over half a minute.

The Solicitor then asked the witness if 'it was time enough to dress a dead man?'

To this question the defense interposed a general objection only.

The objection was overruled, and the witness answered 'No Sir.'

Counsel for appellant argues that this ruling by the court constitutes reversible error in that it permitted Butler to give opinion evidence, i.e. how long it would take to dress a dead man, when he had not been shown to be qualified to give such opinion.

Technically, the objection should have been sustained. However, only a general objection was interposed, and it is not reversible error to overrule a general objection if the evidence sought is admissible under any theory, for unless the objection particularizes the defect in the question neither the interrogator nor the court is informed of a defect that may be latent therein, and no opportunity is afforded to correct such defect by reframing the question, or supplying additional evidence. Head v. State, 35 Ala.App. 71, 44 So.2d 441.

Evidence as to the scene of a crime, as to objects found thereat, and as to the condition of the body, is admissible and relevant evidence, when reasonably proximate to the scene in time and location. Busbee v. State, 36 Ala.App. 701, 63 So.2d 290.

The ultimate end of the evidence sought by the Solicitor by the question posed was the state of dress, or undress of the deceased at the time of the shooting. Such evidence was relevant and admissible. We therefore do not think the lower court should be cast in error because of its ruling in this instance, since only a general objection was interposed.

Further, Butler had testified that the deceased was fully clothed when he entered the bed room after the shooting. Photographs of the deceased taken at the scene on the night of the shooting show him to be fully clothed. Butler testified that the photographs depicted the scene exactly as it was when he first entered the bed room after the shooting. Neither the appellant nor his wife gave any testimony, nor was any sought from either touching on the state of dress of the deceased at the time of the shooting. In other words, the state of dress of the deceased was not made an issue in the trial below. The evidence presented by the State would tend to show that he was dressed at the time. We cannot see therefore that the appellant was probably injured in any substantial right by the ruling complained of. Supreme Court Rule 45, Code 1940, Tit. 7 Appendix.

Counsel for appellant also argues that the lower court erred in overruling his objection to a question propounded to State's witness M. C. Turner, an undertaker, and coroner of Crenshaw County as to whether the bullet wound received by deceased was in his opinion sufficient to have caused death.

The record shows that this question was not answered by the witness. There is therefore nothing before us for review in this instance.

Charge 1 requested by the appellant, being affirmative in nature, was properly refused under the developed evidence.

Refused charges 2, 3, 9, 10 and 11, applying to murder were rendered abstract by the verdict of manslaughter.

Charges 4, 5, and 7 were in our opinion incorrect statements of the legal principles involved in the degree of proof sufficient to sustain self defense, and therefore misleading, and properly refused.

All of these charges begin with the statement that the burden of proof is upon the State to prove to the jury's satisfaction, beyond a reasonable doubt, that the defendant was at fault on bringing on the difficulty, and unless the State has so convinced the jury they should find the defendant not guilty, 'if from the evidence you are reasonably satisfied' that the other elements of self defense, (said elements being set forth in the charges) were present.

The effect of these charges was to place upon the appellant a burden greater than required, i.e., to reasonably satisfy the jury from the evidence that he could not retreat without danger of suffering death, or grievous bodily harm, and that he was in imminent peril, real or apparent, of suffering death or grievous bodily harm.

Despite cases in our reports seeming to state a different rule (see Robinson v. State, 108 Ala. 14, 18 So. 732; Ragsdale v. State, 12 Ala.App. 1, 67 So. 783; McBryde v. State, 156 Ala. 44, 47 So. 302), it is now definitely settled that the rule as to the burden resting on a...