Smith v. State
| Decision Date | 03 March 1942 |
| Docket Number | 6 Div. 843. |
| Parties | SMITH v. STATE. |
| Court | Alabama Court of Appeals |
Reversed after Remandment Nov. 17, 1942.
Rehearing Denied Dec. 15, 1942.
Pennington & Tweedy, of Jasper, for appellant.
Wm. N McQueen, Atty. Gen., and Jas. F. Matthews, Asst. Atty. Gen for the State.
The opinion heretofore rendered in this case by this court is hereby withdrawn, and held for naught. Said opinion dealt only with one of the several points of decision presented by the record and insistences of this appeal. Our conclusion as to said point of decision was not accorded to by the Supreme Court, on certiorari, and the writ prayed for was granted 11 So.2d 471; the Supreme Court rendered an opinion to this effect and under the existing Statute, Code 1940, Title 13 Section 95, we are to be governed by said decision. The cause was remanded to this court for further proceedings.
Where the Supreme Court has granted a writ of certiorari and remanded the case to the Court of Appeals for further proceedings, it becomes the duty of the Court of Appeals to examine the records and consider points of decision therein presented and not already decided by this court. Crisp v. State, 21 Ala.App. 449, 109 So. 282, 286.
We have carefully read and thoughtfully considered the entire evidence in this case, and are clear to the conclusion the appellant should have never been convicted for the offense of murder in the second degree, for the preponderance of the evidence does not sustain such a conviction, and the verdict of the jury to this effect was not responsive to any of the evidence adduced upon the trial.
Where the preponderance of evidence, as here, does not sustain a conviction for murder in the second degree, it is the duty of the Appellate Court to grant the defendant's motion for new trial, and set aside the verdict. This was done in each of the following cases: McDowell v. State, 238 Ala. 482, 191 So. 894, 897, 898; Roan v. State, 225 Ala. 428, 143 So. 454, 460; Bufford v. State, 25 Ala.App. 99, 141 So. 359, 360; Robinson v. State, 29 Ala.App.
47, 191 So. 649, 651, 652; Roy v. State, 25 Ala.App. 510, 149 So. 713, 714.
A killing and sudden passion, excited by such provocation, without malice, is manslaughter. Malice and heat of passion cannot exist. 13 Ruling Case Law 706.
In McDowell v. State, supra, the Supreme Court set aside a conviction of murder in the second degree because: "The verdict of the jury is contrary to the great weight of the evidence and that the court erred in refusing the defendant a new trial." [238 Ala. 482, 191 So. 899.]
We recite a good portion of that opinion, and compare it with the facts in the Jim Smith case. Justice Gardner stated: "Defendant and deceased had been friends for many years."
The same is true of the deceased, Drake, and Jim Smith. They had been friends many years. Justice Gardner said:
In the Jim Smith case the testimony is undisputed that no question had ever arisen as for the defendant having a motive for killing the deceased, Drake. The record does show that the deceased, Drake, had gotten mad at Jim Smith over a school teacher appointment, but that this fact was unknown to Jim Smith.
In the McDowell case the deceased went to the defendant's house and asked for his assistance. In the Jim Smith case, the evidence is undisputed that the defendant was walking along a sidewalk in Haleyville, and that the deceased, Drake, motioned or called Smith to come over to him, and Smith left the sidewalk and went over to where Drake was.
In the McDowell case, the deceased was the aggressor and struck the first lick. This evidence was established by only the defendant and his wife. In the Jim Smith case the undisputed evidence shows that after Drake called Jim Smith over to where Drake was, that Drake got mad at Smith, cursed him, struck the defendant, making a gash over his eye about one half inch or one inch long, knocked Smith backward, and stepped forward to hit Smith again, at which time the defendant, Smith, struck Drake one time with a knife, which hit Drake in the neck and from which Drake died.
This evidence was established by the defendant, and also by State witness Rufus Mann. All these facts are undisputed. In other words, the undisputed evidence shows Drake was the aggressor, brought on the difficulty, struck the first lick, and which was a dangerous lick around the defendant's eye, where, possibly, had the lick been lower he would have lost the sight of the eye; that Smith was in danger of receiving great bodily harm to himself at the time he struck Drake; that Drake knocked Smith backward, and was coming on him again when he struck him, and he could not retreat without possibly most serious danger to him.
In the McDowell case, although the evidence did bear out that the defendant was a truthful man, yet several witnesses testified that the defendant's character was bad. In the Jim Smith case the testimony is that Jim Smith's character was excellent. This was established by a large number of witnesses who had known the defendant for many years, and who had never heard anything against him. In the McDowell case Justice Gardner thought that the testimony of the defendant and his wife was reasonable, and he stated: "I am persuaded that in no event should a conviction be allowed to stand for the degree [second] of homicide of which this defendant was convicted."
In the Jim Smith case the testimony of the defendant was substantially the same as that of State witness Rufus Mann. The testimony of both sides in the Jim Smith case showed that the defendant should not have been convicted for murder in the second degree.
Justice Brown, who finally wrote the opinion reversing the McDowell case, stated that the circumstances attending the killing as disclosed by the undisputed evidence, both of the State and the defendant, afforded no basis for the presumption of malice by the use of a pistol by the defendant on the occasion. After quoting much of the testimony to show the deceased was the aggressor and that the sheriff saw bloody places on the defendant's face, he stated: "The circumstances of the killing as disclosed by this evidence, 'disproved malice.' "
In the Jim Smith case the deceased, Drake, called Smith over to him, and after some conversation, Drake cursed him, struck him, a hard lick over the eye with something which made a gash about one inch long, knocked Smith backward on the ground, and Drake raised his arm to hit him again when Smith struck at Drake with something to keep him off. The Deputy Sheriff who treated Smith's wound testified as to the character of the wound, and two of the witnesses testified that Smith's face was bloody. Smith immediately tried to stop the flow of blood by catching hold of Drake's neck and attempting to close the wound on Drake's neck. None of the witnesses for the State disputed any of these material facts, but as a matter of fact the eye witness for the State did bear out what Jim Smith had to say about the difficulty.
In the McDowell case, Justice Brown says the testimony of the defendant could not be disregarded because of the interest in the result. In the Jim Smith case, the testimony of the defendant is strengthened due to the fact the State's witness, Rufus Mann, gave the same evidence as to the difficulty. Justices Brown, Anderson, Gardner, and Thomas concluded in the opinions as follows: "I am fully persuaded that the verdict of the jury is contrary to the great weight of the evidence, and that the court erred in refusing the defendant a new trial."
In the McDowell case, Justice Gardner stated:
In the Jim Smith case the facts for Jim Smith are much stronger and much more favorable to the defendant, Jim Smith, than they were to McDowell, and following the ruling in ...
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