Sheperd v. State

• Decision Date: 01 October 1975
• Docket Number: 1 Div. 564
• Citation: 57 Ala.App. 35,325 So.2d 551
• Parties: Willie SHEPERD v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 551

325 So.2d 551

57 Ala.App. 35

Willie SHEPERD v. STATE.

1 Div. 564.

Court of Criminal Appeals of Alabama.

Oct. 1, 1975.

Rehearing Denied Oct. 21, 1975.

D. Wayne Childress, Mobile, for appellant.

William J. Baxley, Atty. Gen., and J. Brent Thornley, Asst. Atty. Gen., for the State.

PER CURIAM.

Appellant was convicted in the lower court of murder in the second degree and sentenced to imprisonment for life.

The attorneys representing the parties on this appeal have agreed in brief that the statement of facts set out in the brief of appellant is substantially correct. Since the court concurs in this fact the statement will be adopted as part of this opinion with a brief addition added by the court, and is hereinafter set out as follows:

'On the night of July 12th, and the morning of July 13, 1974, the appellant, Willie Sheperd, was babysitting his stepson, Marc Anthony Earl. The mother of Marc Anthony Earl, the deceased, was at work. (R. 26, 27, 128, 129)

'At approximately 11:00--11:15 on the night of the 12th of July, 1974, Joanne Earl the mother of deceased called appellant and asked him to put Marc to bed. (R. 27, 129, 130) When appellant went to put Marc to bed, he discovered that Marc had wet his pants and asked him why he had done so. The child did not answer and appellant testified that he slapped him. (R. 130)

'Appellant testified that when he slapped him, the child hit it's head on the table. (R. 130) Appellant called the child's mother who came home and when she arrived, appellant was administering artificial resuscitation to the child. (R. 30) The mother, Joanne Earl, made several telephone calls, one of which was for an ambulance. (R. 29)

'Shortly afterward, the police arrived. Officer Raderick Steade of the Mobile Police Department testified that when he arrived he found the child lying on the floor near the dining room table. He further testified that he felt for a pulse and found none and noticed that the child felt cold. (R. 63)

'The child was taken to Mobile General Hospital in Mobile, Alabama where he was seen by Dr. William A. Crutwell, III. (R. 69) The doctor testified that the child was dead and upon examination he found several bruise marks over the anterior chest and some bruise marks around the neck. He further stated there were bruise marks down the side of the child's body. (R. 70) The doctor further testified that he met with appellant and the mother and informed them the child was dead. He further stated that he asked them what had happened and that appellant replied, 'That the little boy had peed on the couch' then he stated that, 'I hit him' (R. 72)

'Some two and one half days later an autopsy was performed by Dr. Earl Wert, Mobile County Coroner with Dr. Nelson Grubbs, State Toxicologist in attendance. (R. 81, 91) Over defense counsels objections, Dr. Wert testified that the cause of death was from massive hemorrhage and shock from rupture of the liver and bleeding. (R. 96) He further testified that in his opinion the damage was caused by a blow from some blunt instrument. (R. 96)

'Defendant testified and admitted slapping the child and then waking up and he (appellant) was on the floor. (R. 130)' (appellant) was on the floor. (R. 130)' have had a mental lapse, remembering nothing, during that time. He had drunk some beer and whiskey that night.

'At the close of the State's case, appellant moved to exclude the evidence of Dr Grubbs and Dr. Wert on the grounds that there was no showing by the state that the condition of the body at the time of the autopsy was the same as at the time the child was initially admitted to the hospital. This motion was denied. (R. 99--104)'

The indictment under which the appellant was tried and convicted reads as follows:

'The Grand Jury of said County charge, that, before the finding of this indictment Willie Sheperd whose name is to the Grand Jury otherwise unknown than as stated, unlawfully and with malice aforethought killed Marc Anthony Earl by beating him to death with his hands, against the peace and dignity of the State of Alabama.

'The Grand Jury of said County further charge, that, before the finding of this indictment Willie Sheperd whose name is to the Grand Jury otherwise unknown than as stated, unlawfully and with malice aforethought killed Marc Anthony Earl by striking him with his fists, against the peace and dignity of the State of Alabama.'

On October 16, 1974, the appellant was arraigned on this indictment and entered a plea of not guilty.

At the beginning of the trial and before a jury was struck, the question was raised by the district attorney as to whether the indictment charged murder in the first degree or murder in the second degree. After some discussion between the court and the attorneys involved, it was determined by the court that the indictment charged murder in the second degree although it had been understood by all parties, apparently, that each count charged murder in the first degree. Upon a motion made by the district attorney, the court advised the attorneys and the jury that the cause would proceed on the charge of murder in the second degree, after which ruling the attorney for the appellant moved for a mistrial based on the statement made by the court, above referred to. The motion was overruled and the case proceeded to trial on the charge of murder in the second degree and the lesser charges included as a matter of law.

No effort was apparently made to amend the indictment and the appellant did not agree that it be amended to delete the charge of murder in the first degree.

The court then announced that the jury would be struck from panels 1 and 2, numbering some 32 jurors. The attorney for the appellant thereupon moved that he be permitted to strike from all of those qualified because the indictment charged murder in the first degree and that in effect he should not be restricted to strike from a lower number as would be the procedure in a noncapital case. This motion was overruled by the court and the jury was struck from the panels above referred to.

The gist of the argument for a reversal is summed up in appellant's brief as follows, to-wit:

First, that the indictment was improperly amended without the consent of appellant and without re-arraignment; second, that the appellant was denied his right to strike from the minimum number of jurors required in a capital case; third, denial of motion to exclude the testimony of Dr. Grubbs and Dr. Wert with regard to an autopsy performed two and one-half days after injury and death of the deceased; and fourth, denial of motion for mistrial based on juror's failing to disclose information during qualifications.

First, we do not agree that the indictment was, in fact, amended under the action taken in this case, although the State chose to proceed, with the concurrence of the court, under the charge of murder in the second degree which charge was necessarily included within the indictment. The indictment, in fact, charged murder in the first degree on its face according to the language used to describe the charge. Title 14, Section 314; Title 15, § 259 (Forms of Indictment), Form 79, Code of Alabama 1940, Recompiled 1958.

As we view the situation resulting from the confusion as reflected by the record as to what exactly the indictment did charge, the end result was that the State chose to denominate the charge as murder in the second degree and proceeded to try the case under that theory without taking proper legal steps such as a nol pros or amendment which would delete the charge of murder in the first degree. We can see no prejudice to the substantial rights of appellant resulting from such procedure, unless it should be held he was required to strike from a panel of jurors numbered less than would have been required for murder in the first degree.

We think the statement of this court in the case of Burt v. State, 54 Ala.App. 1, 304 So.2d 243, hereinafter set out is apropos to the question posed in this case.

In Burt v. State, supra, this court stated:

'Since Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346, decided on June 29, 1972, abolished the death penalty in all the States of the Union, all crimes for which the maximum punishment was death must now be considered non-capital felonies in Alabama. Jones v. State, 50 Ala.App. 62, 276 So.2d 647.

'Appellant further objected to being forced to strike from a list of twenty-five (25) qualified jurors. Since robbery is a non-capital felony in Alabama today, a defendant charged with robbery is entitled to strike from a qualified list of not less...