Peyton v. State

• Decision Date: 27 October 1959
• Docket Number: 8 Div. 350
• Citation: 120 So.2d 415,40 Ala.App. 556
• Parties: Edward R. PEYTON, alias v. STATE.
• Court: Alabama Court of Appeals

Page 415

120 So.2d 415

40 Ala.App. 556

Edward R. PEYTON, alias v. STATE.

8 Div. 350.

Court of Appeals of Alabama.

Oct. 27, 1959.

As Corrected on Denial of Rehearing Feb. 2, 1960.

Crampton Harris, Birmingham, Claud D. Scruggs and Ralph Smith, Jr., Guntersville, for appellant.

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

HARWOOD, Presiding Judge.

This appellant was indicted for, and has been found guilty of, assault with intent to murder Russell W. Smith.

The appellant Edward R. Peyton was at the time of the alleged offense a representative of District 50, United Mine Workers of America. Richard W. Smith was at this time General Superintendent of the Gulf States Construction, Inc.

Gulf States Construction, Inc., was engaged in building a feed mill near Guntersville, Alabama.

The appellant, as representative of District 50, United Mine Workers of America, had sought recognition of that union as bargaining agent for the employees of Gulf States. Recognition was denied, and a strike was called, with a picket line being set up.

On 27 May 1957 a pitched battle erupted between the striking employees, and their adherents on the one side, and the officers of the company, the non-striking employees, and plant guards on the other side. The site of the battle was along a public highway in the vicinity of the entrance to the premises on which the feed mill was being constructed. One man on each side was killed and men on each side were wounded. The extent of the shooting is evidence by the fact that a large number of guns and pistols were picked up by the officers upon their arrival at the scene a short time afterward. Weapons were found scattered along the highway, and in the bordering weeds and brush near the highway, and around a shack maintained by the pickets across the highway. Empty whisky bottles and jugs were also found near the shack.

The evidence presented by the State tended to show that about 6:45 a. m. on the morning of 27 May 1957, a convoy of three automobiles arrived at the entrance to the construction site.

Russell Smith and Al Thomas were in the lead car. Four men were in the middle car, and three in the last car. All were employees of the construction company.

Arriving at the entrance road they found it blocked by crossties, with cars or trucks placed at the ends of the crosstie barricade. Twelve or fifteen pickets or union men stood nearby, and others were seen coming out of the nearby woods or brush.

Smith testified that when he reached the crosstie blockade he started to get out of his car on the driver's side, but two or three men tried to push the car door shut, and he was told he could not go to work.

Smith further testified he succeeded in pushing out of his car, and walked to its front. Seeing the men were armed, he took his sixteen-gauge shotgun from the car as he emerged and walked to the front of his car. Leaning the shotgun against the bumper of his car, he leaned over to remove the crossties, and was shot in the arm from behind. He stepped back to get his gun and saw a Mr. Ward shoot Richardson, a bookkeeper for the construction company. Then, according to Smith: 'and I ran to the left side of the car with my shotgun and Mr. Peyton had Al Thomas around the neck dragging him back away from the car and when I got about where the car door was they shot at me one time then and cut my belt in two. I throwed my shotgun on him (Peyton) and when I raised it up to shoot he shot me through the hand here, right here, and I dropped the shotgun on the ground; it went through my hand here and into may stomach right here. I dropped the shotgun on the ground then. And as I turned around to pick it up, I was shot through the back right through there; it paralyzed me and I fell to the pavement. I reached over to reach to get the shotgun again to pull it up to me and Mr. Peyton hollered, 'Kill him!' And this sandy headed boy I identified walked up over me and shot down at me when I was laying on the ground. Shot me right in here and the doctor took the bullet out there, Dr. Martin. At that time I noticed all the men coming out of the woods there across the road. And I hollered for our men to stop shooting.

'Mr. Humphrey came around to pick me up, or Peyton told Humphrey to come around and see how he shot up his boss.'

Mr. Smith testified that the appellant shot him or shot in his direction four times.

All the bullets were not removed from his body in the hospital in Guntersville. He was in an Atlanta hospital eleven days, and he receives further treatments and hospital checkups every two weeks, his left hand still being partially disabled.

On cross-examination Mr. Smith testified that Al Thomas was not armed at the time the appellant had him around the neck. At this time the appellant had a shotgun lying across the back of Thomas' neck and took a pistol out of his left-hand pocket and shot the witness with it.

On cross-examination Mr. Smith testified that Mr. Ledbetter, another representative of District 50, was present at the shooting.

He denied motioning any one at the plant to come to the scene, and likewise denied that when he first stopped at the scene that he had asked, 'What are you sons-of-bitches doing here?'

Dr. Martin testified that Mr. Smith was near death when he saw him, and that the bullet wound above the belt could have produced death in a short time if medical aid had been absent.

A number of other witnesses testified for the State. The general tendency of this testimony was in accord with that presented through the witness Smith. We do not see that any useful purpose would be served in detailing this additional evidence.

Likewise we believe that the general tendency of the evidence presented by the defense may be illustrated by reference to the appellant's testimony, though again, a large number of witnesses testified for the defense.

The appellant testified he had gone to Marshall County in connection with his work as representative of District 50, United Mine Workers of America.

He had gone to the picket line the night preceding the shooting, and slept that night in an automobile parked at the scene. When he left the picket line that night there were no crossties near the entrance, and he had nothing to do with placing any crossties there. When he saw the crossties the next morning they did not block the entrance, there being a space eight or ten feet in width between them that a car could have driven through.

After he awakened the next morning he saw two or three cars drive up to the entrance of the feed mill premises. Mr. Smith got out of the lead car with a pump, or automatic, shotgun in his right hand. At this time there were thirty or forty men on the picket line, and several of them went up to Smith. At this time a man later made known to the witness as Al Thomas got out of the right-hand side of Smith's car.

Smith said something to the men who approached him. (We interpolate here that several of the defense witnesses testified that Smith asked the men, 'What are you sons-of-bitches doing here?') There was a lot of loud talking.

As Smith got toward the front of his car Mr. Harrison, one of the pickets, stepped forward one or two steps. Al Thomas then pulled a pistol, rested his hand on the car door, the glass being down, and shot Harrison. When this occurred, shooting opened up in general.

Mr. Bonner got hold of Smith, and the witness got hold of Al Thomas. Smith went down on his knees, and Bonner went down with him.

A man named Burton or Barton was standing nearby with his hand in his pocket from which a pistol protruded. The appellant told Burton to throw his pistol down and when he did not do so the appellant, while still holding Al Thomas, struck Burton with a shotgun. When he did this the shotgun fired, and Burton's pistol fell to the ground. This was the only time the appellant fired a gun during the shooting.

When this occurred 'these fellows' backed off, and appellant continued his hold on Al Thomas. He backed away, and turned Thomas over to a man named Summers.

In about thirty seconds law enforcement officers arrived, and he turned Thomas' pistol over to the Chief of Police.

The appellant testified that he was never closer than six feet to Smith during the melee, and that he did not shot at Smith at any time. He also denied that he told anyone to come around and see how he had shot their boss, and he did not tell anyone to shoot anybody else.

He never at any time told anyone to bring guns, nor hear anyone else make any statement to that effect.

He did not bring any gun to the scene with him, and could not say for sure where he got the shotgun, though it must have been by a car or in the road when he got it. He left this shotgun in the pile of guns gathered by the officers.

The appellant further testified that the men put themselves on the picket line. At no time did he hear any threats made or violence advocated.

A number of the witnesses for the defense testified that Mr. Ledbetter was not present during the shooting, he having left the scene the night before.

The appellant also introduced a number of character witnesses who affirmed his good reputation.

During the direct examination of several of the State's witnesses, testimony was elicited, without objection, from them tending to show that prior to the shooting on the morning in question that the shots had been fired at or into the construction job, and further that an automobile belonging to Mr. Humphrey, Superintendent of the construction job, had been bombed.

During the cross-examination of State witness Burton, an employee of the construction company, the court sustained the State's objections to a question as to whether or not certain named persons all went out on strike about a week before the trouble, and put up a picket line.

During the cross-examination of State's witness Humphrey, the court sustained the State's objection...