Slaughter v. State

• Decision Date: 08 February 1972
• Docket Number: 6 Div. 206
• Citation: 47 Ala.App. 634,259 So.2d 840
• Parties: Homer SLAUGHTER, alias v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 840

259 So.2d 840

47 Ala.App. 634

Homer SLAUGHTER, alias v. STATE.

6 Div. 206.

Court of Criminal Appeals of Alabama.

Feb. 8, 1972.

Rehearing Denied March 7, 1972.

J. Louis Wilkinson and Charles Crowder, Birmingham, for appellant.

William J. Baxley, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State.

PER CURIAM.

This appeal is from a conviction of murder in the first degree, with a sentence of life.

The state's evidence shows that on Sunday afternoon, July 13, 1969, Officer Spencer, an off duty Birmingham policeman, was on special duty at the swimming pool at Harris Park, Birmingham, Jefferson County, Alabama; that there was a number of children and young people in and around the pool, and the appellant, accompanied by his sister, another woman and a man, visited the park and went in swimming; that there were several employees of the pool, including at least two life guards, one a male and the other a female, who were on duty; and that the manager of the pool later came in during a difficulty between the deceased and appellant, and that the difficulty seemed to begin when Mr. Brad Crow, one of the life guards, above mentioned, attempted to have a young Negro boy pick up some paper which he, allegedly, had thrown or dropped near the pool; that the boy refused to do as the life quard requested, and during the altercation, the appellant came up and entered into the argument; that the appellant became angry and used obscene, insulting and profane language of a vile type in the presence of and hearing of many of the children in the pool and the female life guard; that Officer Spencer, at this time, advised the appellant, more than once to leave the park; that the appellant continued to use the type language, above referred to, and he and the witness, Andrew Thompson, started away from the pool, while he still continued to use the language as above indicated; that the officer then told the appellant to stop and wait, and advised him he was under arrest. Thereupon, the appellant continued to walk away and to mumble something that was not understandable to some of the witnesses, and at that time the officer took his service revolver out, and told appellant to stop or he would drop him; that the appellant failed to stop, and said the officer would have to shoot him in the back if he shot him, the appellant continuing up some steps leading toward one of the streets adjacent to the park; the officer put his gun back in his holster and ran up to the appellant and either struck him or took hold of him, some witnesses saying one thing and some the other; that he and the appellant grappled and fell to the ground and his pistol fell out to one side; that the appellant and the officer both attempted to reach the gun, but the appellant grabbed it, stood up and backed away several steps with the revolver in his hand pointed toward the officer, and as the officer was attempting to rise, and still in a crouching position, but facing at an angle away from the appellant, the appellant fired a shot from the revolver, which struck the officer in the right side of his chest, the bullet going completely through his body, and from which wound he later died. The person accompanying the appellant when he was leaving the pool, ran away at or about the time of the shooting and the appellant, after a very short time, also ran and was later arrested.

The appellant did not testify himself, but offered several witnesses in an attempt to sustain his plea of not guilty by reason or self defense.

After indictment and pending trial, appellant made a motion for a change of venue, alleging that he could not receive a fair trial in Jefferson County because of the publication by the Birmingham News and Post Herald of allegedly prejudicial and inflammatory matters concerning the homicide with which the appellant was charged.

The motion was heard before a panel of three circuit judges of the Tenth Judicial Circuit: Honorable Wallace Gibson, Honorable Joseph Jasper and Honorable Elias c. Watson; and after submission, it was overruled, the entire panel concurring.

We have before us a transcript, properly certified, of the hearing. The action of the court is not stressed in brief of appellant, but, in attempting to examine the entire record under our statutory duty, we have carefully studied the evidence offered by the appellant and reached the conclusion that he had not carried the burden cast upon him of proving his motion to the reasonable satisfaction of the court. Maund v. State, 254 Ala. 452, 48 So.2d 553.

The exhibits consisted of portions of the Birmingham newspapers regarding the charges against defendant and quoting from statements made by the Mayor of sympathy towards the family of deceased, and condemning violence, along with a story of a meeting of some 50 people with the Birmingham City Council to demand better protection for police and a gathering of protest at the home of the Mayor while he was away.

Also one or more copies of a resolution of sympathy and condemnation of lawlessness, etc., by the Legislature was admitted into evidence, but the evidence showed it was not published in any newspaper, but was sent to the family of deceased. There was evidence of the approximate population of the Birmingham Metro area of 600,000 and a circulation of approximately 210,000 of the Birmingham News and of approximately 20,000 of the Post Herald in this area.

No one testified that the appellant could not receive a fair trial because of the unfavorable publicity. There was no error in overruling the motion. Beddow v. State, 39 Ala.App. 29, 96 So.2d 175; Malloy v. State, 209 Ala. 219, 96 So. 57.

The motion for discovery was properly overruled, it being discretionary with the court. As it developed, much of the information sought was given by the District Attorney. No error appears here.

Appellant's motion to be allowed two peremptory strikes for each by the state was properly overruled, under the law governing this procedure in the Tenth Judicial Circuit (Jefferson County). Volume 14, (Appendix) Code 1958, Recompiled, § 714.

Appellant objected to the statement of the Assistant District Attorney to the jury in argument that 'using profanity before a woman or children is against the law, and is against the law like running a stop sign.' The court overruled the objection and the appellant excepted.

The argument is made that this is an incorrect statement of the law, and the action of the court was erroneous to the injury of the appellant's case. Title 14, § 11, Code 1958, makes it a misdemeanor to use in the presence of or hearing of any girl or woman, etc., abusive, insulting or obscene language. One definition of profane given in Webster's International Dictionary is to vulgarize. Vulgar under the same authority, means offensive to good taste. Them, too, the word 'profanity' in its common, everyday meaning and usage is broad enough to cover obscenities and spoken insults. The evidence is replete with an account of the use of this kind of language by appellant at the pool in the hearing of at least one woman and many children. If there was technical error on the part of the court in its ruling, we do not think the substantial rights of the appellant were injured. Supreme Court Rule 45.

Appellant's refused charge 45 is as follows, to wit:

'If deceased first used verbal insult toward the defendant, without any provocation whatever on the part of the defendant, and defendant retorted by using the character of insult to deceased, and if when he was assaulted by deceased, defendant had the right to defend himself against such aggression upon the part of the...