Smith v. State

• Decision Date: 09 May 1939
• Docket Number: 2 Div. 652.
• Parties: SMITH v. STATE.
• Court: Alabama Court of Appeals

189 So. 86

28 Ala.App. 506

SMITH v. STATE.

2 Div. 652.

Court of Appeals of Alabama

May 9, 1939

Appeal from Circuit Court, Choctaw County; Joe M. Pelham, Jr. Judge.

Henry Smith was convicted of manslaughter in the first degree, and he appeals.

Reversed and remanded.

Christopher & Lindsey and J. Joseph Thompson all of Butler, for appellant.

Thos S. Lawson, Atty. Gen., and Wm. H. Loeb, Asst. Atty. Gen., for the State.

BRICKEN Presiding Judge.

The evidence in this case, without dispute, discloses that Doc Ezell, the deceased named in the indictment, was shot and killed on the night of April 14, 1937, and that said shooting occurred at or near a place owned and run by one Jeff Crowell, colored, and that on the occasion in question a large crowd of negroes were assembled at a fish supper, and for other amusements.

At the Fall Term 1937 of the circuit court of Choctaw County, the Grand Jury returned an indictment in which it was charged that the three named defendants, towit: Henry Smith, John Hynde, alias Hines, and Will Pennington killed the deceased by shooting him with a pistol, and that said killing was perpetrated under such facts and circumstances as to constitute murder in the first degree. No objection by demurrer or otherwise, was interposed to the indictment. Before arraignment and entering upon the trial, each of the three defendants separately demanded a severance which demand, as the law requires, was granted, and this appellant, Henry Smith, was put to trial. He interposed a plea of not guilty. The trial resulted in his conviction of manslaughter in the first degree, and the jury fixed his punishment at imprisonment in the penitentiary for a term of eight years. The trial court received the verdict, and properly adjudged the defendant guilty of the offense of manslaughter in the first degree, in accordance with the verdict of the jury. But in undertaking to sentence the prisoner, for the stated term of imprisonment, the court failed to propound to him the question if he had anything to say why sentence should not be pronounced upon him. To this extent, the judgment is erroneous. However, if no reversible error appears, such error would not affect the judgment of conviction. The cause would be remanded to the lower court for proper sentence. Bryant v. State, 13 Ala.App. 206, 211, 68 So. 704; Frazier v. State, 17 Ala. App. 486, 86 So. 173; Coleman v. State, 20 Ala.App. 120, 101 So. 81; McMahan v. State, 21 Ala.App. 522, 109 So. 553; Oliver v. State, 25 Ala.App. 34, 140 So. 180.

In all criminal cases a defendant may appeal to the appellate court from the judgment of conviction in the lower court. That right is absolute, by provision of the Statutes, and such appeal may obtain without bond or security. Appellants in criminal cases are not required to assign errors, to argue the case, or to file brief, on appeal to this court. The law makes the appellate courts, as it were, their guardian; and requires us to search the record for errors, and, if any we find, to reverse the judgment of conviction from which the appeal was taken, unless it affirmatively appears that no injury to the appellant resulted from such error.

The undisputed evidence disclosed that the deceased, Doc Ezell, a white man, while sitting in his car with a Mr. and Mrs. Skelton and their infant child, was assassinated by having been shot by someone who fired three pistol shots from the dark between two houses. One of the houses was the home and place of business of one Jeff Crowell, the principal witness for the State. The killing occurred between 9 and 10 o'clock at night. There were a large crowd of negroes present; the occasion being a fish fry, dance and other amusements in witness Crowell's place of business; some of the witnesses estimated the crowd would number between fifty and seventy-five, all negroes.

The controlling question in this case is the identity of the person who fired the shot that killed deceased.

This appellant strenuously denied that he fired the shot, and that he knew anything about it, and took no part in the shooting, and no witness on the trial below testified that he did. The most damaging testimony against him was the testimony of said witness Crowell who was himself arrested and placed in jail charged with this same murder, as shown by his own testimony.

We have given careful and attentive consideration to the evidence adduced upon the trial of the case in the court below. The State's evidence is replete with material contradictions, conflicts, uncertainties, and very vague. The principal State's witness, Jeff Crowell, while testifying admitted that upon several occasions he had made statements which were inconsistent and contradictory to his testimony in this case; and, in concluding his testimony on cross examination admitted that the incriminating facts testified to by him, as against this appellant was based entirely and solely upon what had been told to him by some one else several days after the commission of the offense complained of. In this connection the record shows:

"Attorney for defendant asked the following questions:

"Q. When was the first time you told anybody about Henry Smith being connected with it? A. I think that was in the first preliminary trial here.

"Q. When was the first time you knew Henry Smith was in it? A. In the preliminary trial.

"Q. You didn't know it before that day? A. I knew that he was accused of it when it was brought here. * * * I did testify in the case of the State vs. John Hines, charged with killing Mr. Ezell, in this courthouse, that the reason I didn't tell Mr. Stanford and them that Henry Smith shot was because I didn't know it until after I was put in jail, and when you asked me how I found out, I said that Will Pennington told me. It was the truth, I didn't know Henry was the man shot him until Will Pennington testified he shot him. I am basing it on what Will Pennington told me in the Choctaw County jail and what I saw that night. I told Will Pennington that I didn't know Henry Smith was accused of shooting him."

After it had been developed that witness Crowell's testimony which tended to connect this appellant with participating in the commission of the offense, was based, by his...