Sashington v. State
| Decision Date | 01 October 1975 |
| Docket Number | 1 Div. 602 |
| Citation | 56 Ala.App. 698,325 So.2d 205 |
| Parties | M. B. SASHINGTON v. STATE. |
| Court | Alabama Court of Criminal Appeals |
S. J. Laurie, Chatom, for appellant.
William, J. Baxley, Atty. Gen., and William A. Davis, Asst. Atty. Gen., for the State.
Appellant was tried on an indictment charging murder in the first degree, convicted of murder in the second degree and sentenced to imprisonment for thirty years.
The deceased was Ollie Williams, affectionately known as 'Coon' and endearingly addressed by the younger set as 'Uncle Coon.' He was celebrating his threescore and fifth birthday and night he was killed. It was a well attended party at his home, somewhat of a 'come-and-go' but more of a 'come-and-stay' or a 'come-and-go-and-come-back' affair. It commenced about sundown and was suddenly broken up at about the stroke of midnight by the single blast of a shotgun that fatally felled the honored host. Defendant, who lived next door (about 150 yards away) in a trailer, was there. He undoubtedly was included in the guest list; he lived with his brother on the property of deceased. The evidence clearly shows that defendant and deceased were friends, that there had been no previous trouble between them. Defendant came to the party twice, the second time with his single-barrel shotgun that on his first appearance he had left at his trailer. He had been wont to limit his use of the shotgun to shooting squirrels and turkeys.
There were copious refreshments variously provided. Uniformity is lacking in the evidence as to any general question of intoxication of the celebrants, some witnesses indicating that there may have been a beer or so, others that many were 'tight.' Some fights or 'fusses' had occurred in the house or on the porch; one of which had commenced in the presence of defendant only a short while before defendant went to his trailer to get his gun. Defendant's brother and father were involved to some extent. One of such 'fusses' had started in the house, but apparently it had moved therefrom to the door of the front porch about the time defendant arrived in the front yard with his gun. In some way deceased had allowed himself to get involved, perhaps as a peacemaker, and had some through the front door of the house onto the porch with some of the others. Almost every person at the party that testified, about fifteen heard the shot--one shot only. Several testified, and defendant admitted in his testimony, that his shotgun was fired, that he was standing at the bottom of the front steps, with the muzzle of the gun pointed in the direction of the front porch where deceased and others were at the time. Almost all the witnesses who observed him at the time corroborate his own testimony that the gun was not brought to his shoulder when it was fired, but that he was holding it waist high.
Appellant stresses the friendly relationship between defendant and deceased and persuasively argues that the circumstances as a whole show that defendant did not intentionally kill his friend.
To be guilty of murder, one has to have the intention to kill a human being, but it does not have to be the person who is killed. The principle has been firmly established and was relatively recently applied in Tolen v. State, 49 Ala.App. 353, 272 So.2d 279, cert. denied 289 Ala. 752, 272 So.2d 281, and Harris v. State, 46 Ala.App. 189, 239 So.2d 331.
Appellant additionally argues that he did not intentionally kill anyone. He may not have done so, but a jury question was clearly presented, we think. There is nothing in the evidence to indicate that the gun would have gone off without a finger on the trigger. The only finger that could have been on the trigger would have been a finger of defendant. It was a bolt action three-shell gun. The empty shell was found on the ground after the death of Williams. A live shell was found in the gun where it was placed by a cedar tree by defendant. The shells were twelve gauge. The live shell contained No. 6 shot; such shot were found post mortem in the head of deceased. The porch was about four feet off the ground where defendant was standing at the bottom step. Deceased was standing on the porch at the time. Although appellant would not necessarily have known that the muzzle of the gun was pointed at the head of deceased, there can hardly by any question that he could have known and probably did know that it was pointed in the general direction of persons standing on the porch. Under these circumstances the jury was not required to believe his story that the gun went off accidentally. There was some evidence also of flight on the part of defendant for a short time, but we do not attach great significance to defendant's leaving the scene abruptly for a while, as did others. He returned in a short time and voluntarily faced the results of what occurred, for which he evinced regrets, and we are not disposed to doubt his sincerity.
Appellant further argues that there was no evidence of malice, an essential ingredient of murder even in the second degree. It is to be readily seen that if there was no intention to kill or fire the gun, there was no malice. But if defendant intentionally fired the gun under the circumstances stated, malice is inferable as a matter of plain logic, as well as a result of the application of the principle that the intentional and unjustified use of a deadly weapon in a manner calculated to cause death raises a presumption of malice that will prevail unless circumstances of the killing disprove or rebut malice. Smith v. State, 54 Ala.App. 141, 298 So.2d 71; Pardue v. State, 52 Ala.App. 339, 292 So.2d 147; Williams v. State, 51 Ala.App. 694, 288 So.2d 753.
Under all the circumstances of the tragic fatal shooting of seemingly a good man by his friend, the defendant, also seemingly a good man, the evidence as a whole convinces us that a jury question was presented. In many respects the conduct of defendant, as well as the conduct of others, is perplexing. The argument in favor of his innocence as a murderer has some appeal, but we are convinced that the verdict of the jury is not contrary to the weight of the evidence and that the ground of the motion for new trial in this respect was not well taken. The extent of punishment, within the limits fixed by statute, was within the discretion of the jury.
We base our conclusions hereinabove reached upon the evidence as summarized hereinabove and the entire evidence in the case. We deem it necessary to narrate an additional item of evidence for an appropriate determination of the question next discussed.
There was another shotgun at or near the residence of deceased on the occasion of his death. There is no evidence that it was ever in the house, but according to the testimony of defendant, corroborated to some extent by other testimony, it was in the possession of one who was in the front yard, a well lighted yard. It was in the hands of one James Abston. Defendant saw Abston with the shotgun standing in the yard at the time defendant left the house to go to his trailer to get his shotgun. When he returned with his shotgun to the house of deceased, Abston was still standing in the yard with the shotgun in his hand. After the shot, Abston left the scene. On cross-examination of defendant, he testified that Abston was waving the gun while standing in the yard. He said that he did not see Abston waving it at defendant's brother or at defendant's father or that Abston threatened defendant. Abston was the stepfather of the girl defendant was going with at the time. On redirect examination of defendant the following occurred:
'Q Okay, M. B., you said James Abston had a gun out there waving it?
'A Yes, he did.
'Q All right, have you ever been shot before?
'Q Has James Monroe Abston ever shot you?
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...is admissible in a prosecution for the death of a person killed by or because of the operation of a motor vehicle. Sashington v. State, 56 Ala.App. 698, 325 So.2d 205, cert. denied, 295 Ala. 416, 325 So.2d 211 The evidence that the appellant was "sorry" and did not intend the accident was a......
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Lehr v. State, 7 Div. 680
...shot was accidental, and that the second shot was in self defense, presents a question for the jury. Carter, supra; Sashington v. State, 56 Ala.App. 698, 325 So.2d 205 (1975), cert. den. 295 Ala. 416, 325 So.2d 211 (1976). Even though the appellant's testimony in regard to self defense was ......
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...must have the intention to kill a human being, but it does not have to be toward the person, who was killed. See Sashington v. State, 56 Ala.App. 698, 325 So.2d 205 (1975), cert. denied, 295 Ala. 416, 325 So.2d 211 (1976); Harris v. State, 46 Ala.App. 189, 239 So.2d 331 (1970); Terry v. Sta......
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