Simpson v. State
| Decision Date | 23 March 1943 |
| Docket Number | 3 Div. 849. |
| Citation | 13 So.2d 437,31 Ala.App. 150 |
| Parties | SIMPSON v STATE. |
| Court | Alabama Court of Appeals |
Rehearing Denied May 11, 1943.
C.L Hybart, of Monroeville, and Frank G. Horne, of Atmore, for appellant.
Wm N. McQueen, Acting Atty Gen., and L.S. Moore, Asst. Atty Gen., for the State.
The defendant was indicted, tried and convicted of murder in the second degree for the killing of Frank Wadkins.
The question of moment for our decision is whether or not a new trial should be ordered (the trial court having denied the motion for same) on the alleged ground that the verdict was contrary to the great weight of the evidence. McDowell v State, 238 Ala. 482, 191 So. 894. Or, otherwise posed Was the evidence so preponderantly against it that to allow the verdict to stand would be wrong and unjust? Roan v. State, 225 Ala. 428, 143 So. 454; Taylor v. State, 30 Ala.App. 316, 5 So.2d 117.
The transaction giving rise to the prosecution occurred about 12:30 or 1 o'clock on the night (Sunday morning) of July 29, 1939, in an uninhabited section of Flomaton, Alabama, on a narrow road, in a swampy, wooded section, and where there were no street lights.
The defendant was keeping company with a woman between 33 and 34 years of age, by name of Mrs. Louise Barnes, who was a sister of Frank Wadkins (the deceased) and a daughter of Mr. Early Wadkins, the only eye witness to the fatal affray other than defendant. Her said father, Early Wadkins, was opposed to this association, had so told defendant, and had warned him "to stay away."
The evidence is pretty clear that Early Wadkins had been drinking considerably the afternoon before and the night of the tragedy, and that his son, Frank, had also probably had a drink. It is also uncontroverted that Early Wadkins was looking for a gun that night, and tried to borrow one from Orvis White, a service station operator, and that, when Mrs. Barnes heard about it, she communicated this to defendant, and told him "not to come out to her house that Dad and them were after him; that she thought they had a gun; that she told Mr. Simpson she wasn't going back home and that she would meet him at Mr. Kornegia's drive way; that Mr. Kornegia's drive was south of her house--she supposed an eighth of a mile or something like that."
It appears the couple kept the planned rendezvous--as suggested by Mrs. Barnes--but, upon returning to a place near her home, where she alighted from defendant's car, the two Wadkinses immediately got in their car and gave chase to the defendant, who, in order to elude them, turned his car from the highway on to this side road which led back toward Flomaton, his purpose being to return to town for "protection." His attempted flight, however, was futile, for the Wadkins men overtook him, crowded him to the road side, brushed or struck his fender with their car as they passed, pulled on by, and stopped in front of him. At this juncture, they both, or Frank (here seems to be one of the few conflicts in the testimony of the two eye witnesses) got out of their car, and, as Frank (or they) started or was (were) in the act of starting toward defendant who was still in his car and in a seemingly inextricable situation, the defendant (who testified he kept his pistol in the car) fired one shot, killing Frank Wadkins. When Early Wadkins turned his attention to his stricken son, the defendant drove on past them (he could not back up), returned to Flomaton, ordered an ambulance for Frank, and reported to an officer of the law.
From a relation of the above, it is clear that the defendant was not the aggressor in the difficulty; and that there was apparently open to him any reasonable mode or way of escape or retreat, after having been chased down as he was, is left in grave doubt by the evidence.
Mr Wadkins tried to justify this pursuit of defendant when he testified "that they were going to see if they could find Louise Barnes and bring her back home to behave herself." But, aside from his daughter being well past maturity and...
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