Shelton v. State, 2 Div. 235
| Citation | 371 So.2d 451 |
| Decision Date | 17 April 1979 |
| Docket Number | 2 Div. 235 |
| Parties | John Ellis SHELTON v. STATE. |
| Court | Alabama Court of Criminal Appeals |
Henry Sanders, Selma, for appellant.
William J. Baxley, Atty. Gen., and J. Bernard Brannan, Jr., Asst. Atty. Gen., for the State, appellee.
The indictment against defendant (appellant), except for the formal parts, is as follows:
" . . . Ellis Shelton, whose name is otherwise unknown to the Grand Jury, unlawfully and with malice aforethought, killed Bobby Charles James, by shooting him with a pistol. . . . " The indictment was returned in September 1971, but soon thereafter defendant left the state of Alabama to remain away until he was brought back by extradition procedure a few months before his arraignment. No contention is made to the effect that he was denied his constitutional right to a speedy trial.
Appellant is represented by different counsel from counsel that represented him on the trial. On the trial, the indictment was treated, without challenge, as an indictment for murder in the first degree. Appellant now contends that it is an indictment for murder in the second degree and not murder in the first degree, in that it does not charge that the alleged homicide was committed deliberately and with premeditation. The indictment is in the form prescribed by Code of Alabama, Recomp. 1958, Tit. 15, § 259(79), which has been uniformly recognized as the appropriate form of indictment for murder in the first degree. Jones v. State, 21 Ala.App. 234, 109 So. 189 (1926). See also, King v. State, 49 Ala.App. 111, 269 So.2d 130 (1972) and Harvey v. State, Ala. Cr.App., 341 So.2d 187 (1977). In contrast, the Code form for murder in the second degree, as prescribed by Tit. 15, § 259(81), contains the language "but without premeditation or deliberation." Although not applicable to indictments returned at the time the indictment in the instant case was returned, it is to be observed that no material change has been made in the pertinent forms prescribed by Code 1975, § 15-8-150(72), (73).
Appellant's only other contention for a reversal is stated in appellant's brief as involving "highly prejudicial questions asked the defendant on cross-examination by the District Attorney regarding details of two prior convictions of aggravated assault." The brief quotes from defendant's testimony on cross-examination as follows:
To state that the question now presented is to be resolved by a determination whether the particulars of a crime involving moral turpitude for which a witness has been convicted may be shown as affecting his credibility is to oversimplify the question now before us. As appellant contends, the particulars are not generally admissible over an appropriate objection. Waters v. State, 117 Ala. 108, 22 So. 490 (1898); Latikos v. State, 17 Ala.App. 655, 88 So. 47 (1921); Ellis v. State, 244 Ala. 79, 11 So.2d 861 (1943); Conley v. State, Ala. Cr. App., 354 So.2d 1172 (1977).
In the recital in appellant's brief of the State's cross-examination of defendant as quoted above, much more is to be found than that which pertains to the question whether it constituted evidence affecting the credibility of defendant as a witness by reason of his having been convicted of a crime involving moral turpitude. Much of such testimony should be reviewed against the background of testimony of defendant during direct examination of him, which was in part:
It is to be readily seen, when this considered with quoted parts of the State's cross-examination of the witness prior to the overruling by the court of two objections made by defendant's counsel, that State's counsel was properly endeavoring to show that instead of defendant's moving from Chicago to Ft. Wayne being by reason of his having no relatives in Chicago but having relatives in Ft. Wayne, as he claimed in his direct testimony, it was by reason of his "difficulties with the law in Chicago" that he moved to Indiana, which was clearly within the range of proper cross-examination, as to which there was no objection, except "to the form of the question." The record does not show to which particular questions the objection was made, and our attention is not called to any defect in the form of either of the questions asked before each of the objections made as to the form of the question. There was no error in overruling either of said objections.
As to the last objection, wherein counsel for defendant stated, "I don't believe the District Attorney has the right to go into the details of the conviction," it is to be observed that the last question asked by counsel for the State was, "what is aggravated battery," and the court sustained the objection to that question. Whatsoever there may be in the remainder of defendant's testimony on cross-examination as quoted above that may have constituted particulars of previous crimes that should not be admitted in evidence after appropriate objection thereto has been made, the last objection made by defendant was not directed to any specific question or evidence. Whatever question was asked by counsel for the State that appellant may have conceived to be the question objected to, such question was not the first question asked after the overruling of the objection. Different questions were thereafter asked to which no objections were made. The failure to object to such questions constituted a waiver of the right to claim that the answers thereto constituted inadmissible testimony. State v. Garris, 292 Ala. 495, 296 So.2d 712 (1974).
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Watson v. State
...not appear that this matter was submitted to the trial judge. Error cannot be based on matters not shown in the record. Shelton v. State, 371 So.2d 451 (Ala.Cr.App.1979). This Court cannot consider statements contained in the appellant's brief as to facts and events not reflected by the rec......
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Johnson v. State
...assent today to the statement that "a high order of men" are prone to the kind of assault described in § 13A-6-21. In Shelton v. State, 371 So.2d 451 (Ala.Cr.App.1979), this Court noted that it was not required to decide whether "aggravated assault" or "aggravated battery" were crimes of mo......
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Thomas v. State
...regrettable, we cannot be guided by anything that is not in the record or is not agreed upon by the parties on appeal. Shelton v. State, Ala.Cr.App., 371 So.2d 451 (1979). We are in accord with the similar case of Sellers v. State, 56 Ala.App. 367, 321 So.2d 706, cert. quashed, 295 Ala. 417......