Roberts v. State, 5 Div. 552

Citation63 So.2d 584,258 Ala. 534
Decision Date19 January 1953
Docket Number5 Div. 552
PartiesROBERTS v. STATE
CourtSupreme Court of Alabama

Walker & Walker, Opelika, and Wilbanks & Wilbanks, Alexander City, for appellant.

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

FOSTER, Justice.

Appellant was convicted of murder in the first degree for the killing of Kyle Young on Easter Sunday afternoon, April 13, 1952, and sentenced to imprisonment in the penitentiary for life. The shooting occurred at the home of appellant about eight miles from Dadeville. That afternoon, around 1:30, a telephone call was made to the jail at Dadeville by Mrs. Irene Yarbrough, a sister of Mrs. Fulton Roberts (her husband being a son of appellant). Mrs. Yarbrough sought to speak to the sheriff, but he was not available and there was no one in the sheriff's office, so she had her conversation with the jailer. She testified that she told jailer Treadwell she wanted law officers to come to the house of Bill Roberts (this was not the appellant's house); that Mrs. Fulton Roberts (who was called Lossie) wanted to see a law officer, and to come right away. Mr. Treadwell testified with respect to that call, and stated that Mrs. Yarbrough told him to tell any of them (meaning the sheriff's force) to come quick, and she said that Fulton Roberts and his father, who is appellant, were having an argument. They lived across the road, some four to five hundred yards, from each other but in sight, and that she wanted some law enforcement officers up there and wanted them quick. When that conversation was communicated to Kyle Young, the deputy sheriff, he solicited Mr. Watson, the chief of police at Dadeville, to go with him and the two immediately set out on the trip and went to the home of Bill Roberts, as they were requested to do. When they arrived at the home of Bill Roberts, Kyle Young was told by Mrs. Fulton Roberts that they (referring to Fulton Roberts and appellant) had been down there drinking and fighting, and that it had been going on for sometime every week end, and that they had a gallon of whiskey hidden down there in the cow pasture, and she wanted the officers to go down and see if they could make them behave themselves.

Mrs. Fulton Roberts, testifying as a witness for the State, said she told the officers when they arrived at Bill Roberts' house that appellant and Fulton Roberts were fussing and drinking and trying to fight. That the officers thereupon drove from Bill Roberts' house to appellant Edgar Roberts' house which was not so far away. There was no disturbance going on at that time in appellant's house or on his premises. The difficulty began at Fulton's house about 12:00 o'clock and they fought on out to the yard; and that they were fighting or scuffling. That Fulton threw some bricks at his wife.

Watson who accompanied Young on the trip was a State's witness, Young having been killed on that trip. Watson testified that when they arrived at appellant's house Fulton Roberts came to the door and said 'come in, Mr. Kyle. How are you felling?' Young said to him, 'what is the trouble? They tell me you are here drinking and raising the devil.' Fulton said 'there is nobody been drinking or raising the devil, and there is not a drop of liquor in the house and has not been.' Watson testified that he could then see appellant lying on a cot in the combination living and bed room. That appellant was drunk when they arrived and throughout the transaction, and that Fulton Roberts was also drunk. That they went into the living room where appellant was lying on the cot, and Mrs. Roberts, the wife of appellant, came in from the kitchen and stood in the doorway between the two rooms.

The officers are not shown to have had a search warrant or any other kind of warrant with respect to appellant. It does not appear from the evidence that the officers offered to arrest appellant or Fulton Roberts or went there to make a search of the premises. But Watson testified that appellant's wife told them that 'there is not a drop of liquor in the house and if you think there is any anywhere, look.' The officers then went into the kitchen. The deceased Young then said 'Watson, look and see if you see anything.' Watson testified that they could smell corn liquor in some glasses on the table. Appellant's wife went into the kitchen and sat on a little green painted box, which it developed was a meal and flour bin. Mrs. Roberts then opened the dish cabinet, and said look in here. Watson became suspicious when she sat down on the bin, that there was whiskey in it, so he said 'lady, let me see in this little box you are sitting on.' She got up and said this is a meal and flour bin, and there is nothing in it. Watson thereupon opened it and found two pint bottles, each having about a drink in it. Then Mrs. Roberts observed, 'I have rheumatism in my leg and Dr. Banks told me to take whiskey for it, that is the reason the whiskey is here.' There was no other search made and no effort made to arrest anyone.

It was at that time, according to the testimony of Watson, that the defendant arose from his cot and began cursing them violently and threatened to kill them, having a twenty-two rifle in his hand. There was no shooting done immediately, but the witness Watson drew his pistol and Young told him not to shoot appellant. Young got hold of appellant's rifle, and appellant snatched it from him and ran out of the house, followed by Young, Watson, Fulton Roberts and Mrs. Roberts. Watson continuing to testify stated that appellant got about ten or fifteen feet from Young, and was then some sixty or seventy feet from his house, and he threw up his rifle like he was taking aim, Young then pulled his pistol and appellant fired his rifle, hitting Young. Young returned the fire and hit appellant and exclaimed, 'Watson, I am shot through and through.' Watson was also firing his pistol. There was evidence that Fulton Roberts then said to Watson, 'don't shoot my daddy'. Watson testified that he shot six times at the appellant with a forty-five pistol, and that Young was firing at appellant with a thirty-two pistol. That appellant followed toward the car and emptied his rifle shooting ten or eleven times. Watson thereupon hit Fulton over the head three time with the barrel of his pistol, and Fulton fell flat on his face. That Watson took the rifle from appellant's hand and hit him under the chin with his fist, and he fell backwards with his head near the steps of the house. Defendant, his wife and Fulton contradicted some of the material facts to which Watson testified.

Watson drove from the scene of the difficulty, leaving the appellant and his son Fulton Roberts lying unconscious on the ground. After taking Young to the hospital, Watson returned to appellant's house with other officers. They found appellant on his cot wounded from shots made by the officers. Watson testified that appellant was drunk and they carried him to the doctor's office shortly thereafter. The doctor also testified that he was drunk. No one claimed that appellant and Fulton were not drunk.

Both Watson and the doctor were permitted to testify to statements made by appellant while in the doctor's office, which were very damaging to the appellant. That appellant was cursing bitterly, and stated that 'he killed the God damned son-of-a-bitch, and everyone of you ought to be dead, God damn you,' and that 'if the God damn son-of-a-bitch was living, he would kill him again.' In that connection, Dr. Banks testified that appellant was drunk and unreasonable. Substantially the same statements were made by appellant about four hours later in the jail in the presence of the members of the sheriff's force and several other people. In that respect, Dr. Banks testified that appellant was still drunk, but that he knew him and was not unconscious.

The objection made to the testimony of what appellant said on those occasions was directed to the fact that he was too drunk, according to the evidence to which we have referred, to be capable of making a voluntary statement.

We recently had occasion to give careful consideration to that question in the case of Redwine v. State, Ala.Sup., 61 So.2d 724. We refer to that case for a full discussion of the question and the authorities in support of it. We there held that proof of insanity as of drunkenness must go to the extent of showing that the defendant was substantially a maniac, and was disabled from 'comprehending the effect of his admissions, or from giving a true account of the occurrence to which they had reference,' in order to exclude it as being thereby involuntary. But that his condition in that regard was admissible in evidence, so that the jury could give such weight and credit to the alleged confession under those circumstances as they might see fit.

We do not understand that objection was made to evidence of the remarks made by defendant on the ground that they were not a part of the res gestae and were made some hours after the fatal rencounter. The principle is well established that declarations against interest, made by the accused before or after the commission of the homicide, tending to connect him with the crime in question, are admissible against him if they are shown to have been voluntary, whether or not they are a part of the res gestae. Patty v. State, 242 Ala. 304, 6 So.2d 399. The principle is also expressed as follows: 'The acts, declarations and conduct of the accused, against interest, are always competent', Woodard v. State, 253 Ala. 259, 44 So.2d 241, 245, and such acts and declarations, unless they are a part of the res gestae, are not admissible in favor of the defendant. Pitts v. State, 140 Ala. 70, 37 So. 101; Maddox v. State, 159 Ala. 53, 48 So. 689; Bass v. State, 219 Ala. 282, 122 So. 45.

It is insisted for appellant that there was error by the trial judge making a statement in the presence...

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