Shine v. State

• Citation: 44 Ala.App. 171,204 So.2d 817
• Decision Date: 28 November 1967
• Docket Number: 3 Div. 202
• Parties: Joshua Samuel SHINE v. STATE.
• Court: Alabama Court of Appeals

Page 817

204 So.2d 817

44 Ala.App. 171

Joshua Samuel SHINE v. STATE.

3 Div. 202.

Court of Appeals of Alabama.

Nov. 28, 1967.

Chas. S. Conley, Montgomery, for appellant.

MacDonald Gallion, Atty. Gen., and J. S. Pinkston, Asst. Atty. Gen., for the State.

JOHNSON, Judge.

Appellant was convicted of murder in the second degree in the Circuit Court of Montgomery County, Alabama, and from a judgment imposing a sentence of fifteen years in the State penitentiary as punishment therefor, he makes this appeal.

On October 4, 1963, appellant was convicted in the Recorder's Court of the City of Montgomery of carrying a concealed weapon and sentenced to sixty days at hard labor. The Dean and Pettus Bonding Company (hereafter referred to as the Company) made an appeal bond from the City Court's conviction to the Circuit Court of Montgomery County in the amount of $200.00. It appears that after the appeal was taken sentence of sixty days at hard labor was changed by the court to a $100.00 fine and court costs.

According to the testimony of both Mr. David Dean, Manager of the Company, and that of appellant, upon the occasion of the homicide which is the subject of this appeal, appellant owed the Company about $40.00 of the original amount of about $119.00 as payment for his fine.

Mr. Dean testified that the procedure which the Company followed in instances where the defendant had not paid his fine or had not appeared in court as required by law, was as follows:

'Well, this primarily is concerning the Recorder's Court where a person goes to Court and he is fined and does not have the money to pay the fine at that time. We write an appeal bond to the Circuit Court, and prior to the time that this case comes up in the Circuit Court, the defendant deposits the fine in our office to us and once he had deposited the whole fine, we pay the case off before it comes up in Circuit Court.

'Q. Now, suppose you make an appeal bond and he doesn't show up in Court. What steps do you take so that you can arrest him and get him into Court?

'A. Well, we obtain a certified copy of the bond from the Circuit Clerk and go and find the party and re-arrest him.'

An allegedly certified copy of a bond dated July 1, 1964, was introduced into evidence. Appellant testified that at the time he signed the bond he did not know what he was signing and was told that his fine had been paid by the Company. He also testified that he did not know that the Company had arranged for him to take an appeal to the Circuit Court.

According to the testimony, on two occasions prior to July 2, 1964, Mr. Clifton Ruff (the deceased) and another man had attempted to 'pick up' appellant and on both occasions appellant had evaded them. On another occasion Rufus Orum came to appellant's home and, according to appellant, 'He told me they wanted to see me down at the office, and I had to go with him.' However, appellant stated that he did not go because he had no money. On July 2, 1964, at about 5:00 A.M., David Dean, Mr. Ruff (the deceased) and Rufus Orum (a Negro) went to appellant's home in an attempt to apprehend him. Mr. Dean testified that he was carrying a 38 caliber pistol, deceased was armed with an 18 1/2 inch barreled shotgun, and Rufus Orum was unarmed. More specifically, the testimony of Mr. Dean was as follows:

'Mr. Ruff and I got out on Hill Street and went through the back yards to the back part of the house. One went to the windows on the right hand side and I think I went to the back door. Rufus Orum drove to the front to knock on the door, the front door, to get him to the door. Samuel Shine came to the front door and Rufus called me and said, 'Mr. Dean, Sam is at the front door,' and so Mr. Ruff and I both came from the back and came to the front to talk to him or to bring him with us. I had a certified copy and I told him at that time that we had to go downtown to see about this fine, and that it was delinquent and that I was going to have to take him downtown, and Rufus told me that he wouldn't open the door and so I reached for the screen door, and it was latched, and it was latched very tightly. It wouldn't give at all. So, I told Joshua to open the door and come on with us, and he said, no, sir, I am not going now, and I stepped toward the door to pull it and he slammed the front door and locked it.

'Well, when this happened, I told Rufus to go to the back and I went to the back also and Mr. Ruff stayed at the front. Well, I went to the back door which is on the left hand side of the house and Rufus went to the right hand side by the windows, and I knocked on the back door and pushed on it and kicked at it. It was a little flimsy sort of door, but it was a solid wood door that had a lot of leverage to open it. I couldn't budge it.

I had on leather shoes and there was dew on the porch and I almost slipped down and so I came to the front and told Mr. Ruff to go to the back door and I knocked on the front again and I called to him and I heard Rufus in the back say, Joshua, don't come out of the window. So, I stepped to the side of the porch-I stepped to the side looking down at the windows, and I saw him pushing the screen out to come out the side, and I called to him and I said, Joshua, come on and don't go out the window. I said, we are both here. So, Mr. Ruff at that time-well, I couldn't say what Mr. Ruff was doing because I couldn't see him, but I started back across to the front of the house.

'Joshua obviously had left the window and I started across to the front porch and I heard a shot. I heard Mr. Ruff cry out--scream. I ran off the porch. I knew what had happened and I ran off the porch and started back to Mr. Ruff. At this time he was holding his stomach and was walking down the steps or staggering or falling off of the steps. He had a shotgun with him--a pistol type shotgun that he carried.

'Q. What do you mean by a pistol type shotgun?

'A. Well, it wasn't a pistol type. It had an 18 1/2 inch barrel. It was a Model 12 pump with the stock cut off with a pistol grip.'

Next, while in appellant's backyard, Mr. Dean fired several times into the house at appellant who was attempting to escape by way of the back door, and later did escape by way of the front door. Appellant was apprehended by police thirty-six hours later in Dothan, Alabama after an order for his arrest had been issued.

Appellant testified that on one of the visits made by employees of the Company prior to July 2, 1964, they had broken into his house and taken his shoes and flashlight. He stated that he spoke with members of the Company about the return of his property but it was never returned. On another occasion appellant stated that, while in the Company office to make a payment, he was offered a pair of old shoes in place of his own. The Company denied this.

The failure of the Company to return these personal items was one of the reasons given by appellant for his refusal to go with them on July 2. He also testified that while he was talking to Mr. Dean on the front porch just prior to the homicide 'Mr. Ruff throwed the gun like he was going to shoot me and I slammed the door.' In detail, appellant testified as follows:

'Q. What did you do after you shut the door?

'A. I run to the dresser. I run to the dresser and started trying to find some shells.

'Q. Then what did you do?

'A. I run to the back of the bed and got my gun.

'Q. Did you hear Mr. Dean knocking on the back door?

'A. I didn't hear him knocking.

'Q. Did you hear anybody at the back door?

'A. One busting the door open. Busting the door open. Bamm$ Bamm$ Bamm$ Just like that until the door flew open. Busted open. When the door flew open, I shot.

'Q. Did you see anybody enter the room?

'A. I didn't see nobody. Ain't but one thing I seen. I seen the shotgun barrel when it was stuck in the door. When the shotgun barrel come in the door and the door flew open, I just shot. I didn't know whether I shot him or not, but I shot.

'Q. What did you do, Sam?

'A. I got away. I run. I run on out the front door. When the people started hollering and they were shooting the gun--that's when I run out. I run out right away.

'Q. Did you know who was at the back door?

'A. No, I didn't.

'Q. How many times did the person there hit the door?

'A. About five or six times.

'Q. You say you reached and got your gun, Sam. Why?

'A. Because I was scared.'

In the following testimony, Mr. Dean stated that Mr. Ruff succeeded in breaking the door in?

'Q. Did you also hear Mr. Ruff banging on the back door trying to get in?

'A. Yes.

'Q. Approximately how long was he back there beating on the back door trying to break it in?

'A. He hit the door probably four or five times. He was pushing it with his shoulder.

'Q. In fact, he did succeed in breaking the door in, didn't he?

'A. Yes, he did.'

Appellant made a motion to strike the jury venire drawn to try him and another motion to set aside the list of the venire and to also strike the twelve jurors selected to try him. The grounds of the two motions were that appellant was a Negro and that there was a systematic exclusion of Negroes from the jury panel. However, appellant offered no proof in support of these contentions and we will not further consider the grounds of the motions. Morris v. State, (Ala.) 39 So. 608 (Not reported in State reports). Drinkard v. State, 43 Ala.App. 294, 189 So.2d 583, cert. den. 280 Ala. 713, 189 So.2d 587.

Appellant also cited as error the introduction of a written statement taken by the police from him. As a predicate for introducing this statement, the State offered evidence that appellant was not 'threatened or coerced in any way or offered any hope or promise of reward' and stated that he was asked if he desired counsel before this statement was made and advised that the statement would or could be used against him as evidence in a court of law. There is evidence tending to show that before appellant signed the statement it was read to him. We find no...