Sheppard v. State
| Decision Date | 20 March 1973 |
| Docket Number | 6 Div. 390 |
| Citation | 272 So.2d 605,49 Ala.App. 398 |
| Parties | Clarence SHEPPARD, alias v. STATE. |
| Court | Alabama Court of Criminal Appeals |
Graydon L. Newman, Jr., Birmingham, for appellant.
William J. Baxley, Assy. Gen. and Herbert H. Henry, Asst. Atty. Gen., for the State.
The December, 1965, Term of the Grand Jury of Jefferson County, Alabama, indicted the appellant, Clarence Sheppard, for first degree murder. The appellant entered pleas of not guilty and not guilty by reason of insanity, and was taken to Searcy Hospital at Mt. Vernon, Alabama, where he was evaluated, and remained there until March, 1970. At this time appellant was declared competent to stand trial and was taken back to Birmingham where he was arraigned in December, 1970, accompanied by counsel. Trial was had in February, 1972. Appellant was found guilty of murder in the first degree, and the Jury's verdict and judgment fixed punishment at death.
The State's evidence established that the deceased, Lillian Lee Cunningham, had employed the appellant to do odd jobs around her home for several years prior to her death. This was established through testimony of her husband. Evidence at the trial showed that the appellant had been working around the house of the deceased on the morning she was killed by strangulation. The husband of Lillian Lee Cunningham found her body when he returned home from work near midnight on December 5, 1965; that items of clothing, a television set, a record player, some jewelry and a watch had been taken from his house. Testimony indicated that the deceased had been stabbed numerous times; that her throat had been cut; that a cord had been placed round her throat; and a towel had been forced down her throat, which caused her false teeth to strangle her. Testimony of a witness, Alex Welch, Jr., who accompanied the appellant to Mississippi, was that the appellant entered the house of the deceased, Lillian Lee Cunningham, on the night of her death and that he removed a television set, some clothes, a record player, and other items from the house; that the appellant accompanied the witness, Alex Welch, Jr., in his car to Meridian, Mississippi with another party, 'Icie Mae,' and that all the parties had a drinking party on the way to Meridian. Further testimony indicated that when they arrived in Meridian, the appellant hocked the television set, a watch, and record player, all being identified as belonging to the deceased, Lillian Lee Cunningham, and her husband. The money received by disposing of the above items was used by both the appellant and Alex Welch, Jr., to buy whiskey and rent a room in Meridian, Mississippi; that when the appellant and Alex Welch, Jr., were arrested in Meridian, Mississippi, items of clothing, being identified as belonging to the deceased's husband, were found in the back seat of the car belonging to the State witness, Alex Welch, Jr.; that the other items that were hocked in Meridian, including a television, record player, and wrist watch, were recovered by the police and identified by the deceased's husband as belonging to the deceased and himself. A transistor radio was removed by the police from the home of Alex Welch, Jr.'s aunt in Cuba, Alabama, which was identified as having been left there by the appellant in route to Meridian.
Coroner W. L. Allen testified that the cause of death was 'from strangulation due to the denture being in the larynx.'
The trial court originally ordered the appellant to Searcy Hospital in Mt. Vernon, Alabama, where he had remained from February, 1966, until March, 1970, and had been diagnosed as a Schizophrenia Paranoid type.
Prior to trial, appellant's counsel filed a motion with the trial court for a dismissal of the case in that the appellant desired to require the doctor who had examined him within a month or two after the incident in question to appear in open court pursuant to subpoena and testify. The doctor had written appellant's counsel that pursuant to the provisions of Title 45, Section 226, Code of Alabama 1940, recompiled 1958, due to the nature of his duties and the welfare of his patients, he would be unable to personally appear but was sending the complete medical record of the appellant, properly authenticated for introduction at trial. These records were, of course, placed in evidence in the trial of this cause, but a letter written by Dr. Condom to appellant's counsel, wherein his condition was summarized, was disallowed by the trial judge as it had not been authenticated as a part of the medical record of the appellant.
Under the provisions of Title 45, Section 226, and Title 15, Section 297, Code, supra, we find that the trial court correctly ruled that the proper procedure to obtain the testimony of the physician in charge of the State mental hospital is by way of deposition under the aforesaid statutes, therefore, the trial court's ruling in this regard is free from error. See also Argo v. State, 282 Ala. 509, 213 So.2d 244.
Appellant objected to the introduction of several photographs made at the scene. We deem these photographs properly admitted under the rules set forth in Smarr v. State, 260 Ala. 30, 68 So.2d 6, and authorities therein cited.
At the close of the State's evidence, the appellant moved to exclude same and for a dismissal, contending that the State had not established a prima facie case. Our Court in Kizziah v. State, 42 Ala.App. 303, 162 So.2d 889, defined 'prima facie evidence' as follows:
"Prima facie evidence' means that which brings about a measure of proof which, unless it is self contradictory or is contradicted by the defense, would support the jury's inferring the existence of one or more elements of a crime.'
In McDowell v. State, 238 Ala. 101, 189 So. 183, we find the following:
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Eldridge v. State
...Briggs v. State, 375 So.2d 530, 534 (Ala.Cr.App.1979); Stiles v. State, 55 Ala.App. 374, 376, 315 So.2d 609 (1975); Sheppard v. State, 49 Ala.App. 400, 272 So.2d 605 (1973); Cunningham v. State, 47 Ala.App. 730, 734, 261 So.2d 69 In Tittle v. State, 252 Ala. 377, 379, 41 So.2d 295 (1949), i......
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Tooson v. State, 6 Div. 882
...made by appellant's counsel at the conclusion of the State's evidence. McDowell v. State, 238 Ala. 101, 189 So. 183. Sheppard v. State, 49 Ala.App. 398, 272 So.2d 605. See: Braggs v. State, 283 Ala. 570, 219 So.2d 396; Rikard v. State, 15 Ala.App. 497, 73 So. At the conclusion of all the ev......
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Posey v. State, 3 Div. 957
...and it is settled that the statutory procedure referred to hereinabove comports with constitutional requirements. Sheppard v. State, 49 Ala.App. 398, 272 So.2d 605 (1973); Rich v. State, 51 Ala.App. 556, 287 So.2d 873 (1973); Pierce v. State, 52 Ala.App. 422, 293 So.2d 483, cert. quashed, 2......
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Pierce v. State
... ... We hold that § 226, supra, provides a constitutional alternative to compulsory ... attendance at trial, such alternative taking the form of pretrial deposition. See Sheppard v. State, 49 Ala.App. 398, 272 So.2d 605 ... In support of the insanity plea, defense counsel attempted to have his expert witness perform an in-court demonstration on the body of the appellant. We do not find the abuse of discretion which is necessary to show reversible error in ... ...