Smith v. State
| Citation | 298 So.2d 71,53 Ala.App. 141 |
| Decision Date | 16 July 1974 |
| Docket Number | 6 Div. 571 |
| Parties | James SMITH v. STATE. |
| Court | Alabama Court of Criminal Appeals |
William J. Baxley, Atty. Gen. and J. Richard Piel, Asst. Atty. Gen., for the State.
Appellant stands convicted of murder in the second degree and the jury fixed his punishment at thirty (30) years imprisonment in the penitentiary. He was represented by retained counsel at his arraignment and trial. After trial he was declared an indigent and a free transcript was furnished him. New counsel was appointed to represent him on appeal.
On Sunday morning, December 17, 1972, appellant and the deceased rode together in deceased's car to a 'shot house' operated by Cora Mae Davis in the Homewood Community of Jefferson County. They had known each other for some years and had been on friendly terms. They had hunted and fished together. They lived on the same street in Homewood. Prior to this Sunday, they had been going with the same woman and had quarreled over her. They arrived at the 'shot house' around 10:00 A.M. and started drinking beer and gin. After a few drinks, the deceased renewed the argument about the woman and The deceased's son left the 'shot house' and went to his father's home and got a 20 gauge pump gun, loaded it with three buck shot shells and started back to the 'shot house.' He was intercepted by the deceased and the other two men who came to this place with deceased's son. They told him to put the shotgun back in the car. They all returned to the home of the deceased where his son unloaded the shotgun and handed the empty gun to the deceased. The son and his two companions left the home of the deceased and went back to their employment of driving taxi cabs.
told appellant that he (deceased) had 'beat his time.' Appellant was armed with a pistol and this statement upset him. The deceased was unarmed. When he saw appellant's pistol, he went to the telephone and called his grown son and told him he was having trouble and the circumstances thereof. Shortly thereafter the son of the deceased and two companions, one of whom had a pistol, arrived at the 'shot house' to be on hand in the event of further trouble. When this trio arrived, the deceased bought a round of drinks for them and his son moved close to where appellant was sitting. He told appellant that he understood he wanted to whip his father and said, 'I'm sure you don't want to whip my dad.' Appellant got up and moved to another place in the house and deceased's son moved close to him again. Appellant then pulled his pistol and pointed it at the head of the son of the deceased. The son said, 'Man, you are crazy', and ran out of the room and shouted to his friend who came to the house with a pistol. The man with the pistol cocked the hammer and told appellant to put his pistol up and appellant complied with this order.
When appellant left the 'shot house', a friend in the neighborhood called him into his house and told him not to go in the direction of deceased's home as they were waiting for him with a pistol and shotgun. Appellant used the telephone and called his wife to take their children and go to her mother's house as there might be some shooting going on. Appellant then said he was going home. He started home but changed his mind and decided that he would go to the home of the deceased and ask him why he tried to 'set him up.' Appellant was mad when he went to the home of the deceased and knocked on the door. When he got to the home of the deceased, he called him out of the house on the porch and started beating him on the head with the pistol. According to appellant, the pistol went off and the deceased was shot in the head. The deceased was still unarmed. Several witnesses heard the shot, saw the deceased lying on the porch, and saw appellant walking toward his home with a pistol in his hand.
The deceased was carried to the University Hospital where a team of neurosurgeons performed a craniology on the night of December 17, 1972. The next morning his convalescence was turned over to another service in the hospital under the supervision of Dr. William Carver Woodall. Dr. Woodall's qualifications were admitted by counsel for appellant and in response to a question concerning the brain of the deceased, Dr. Woodall testified:
Dr. Woodall further testified the deceased never reached a state of full consciousness and died on December 26, 1972. The doctor said:
'His immediate cause of death is listed on the death certificate as pneumonia, but you cannot separate the two. The gunshot wound placed him in bed. It prohibited him from clearing his lungs of secretions from expending them fully, so that the lungs, over a period of time, became congested. With the congestion, follows infection, following pneumonia The doctor further said, 'I don't think there's any question that the gunshot wound to the head predisposed him to pneumonia.' The doctor also expressed the opinion that the gunshot wound was serious and that death would have resulted therefrom.
which followed death. So, that it's a continuing--The death certificate also states that the pneumonia was secondary to the gunshot wound.'
After the shooting, appellant left his home and went to another community in Jefferson County. That same night he got a cousin to call the Homewood Police Department and tell them he was coming in and surrender. He and his wife arrived at the station house around 7:00 P.M. His wife handed the pistol to an officer saying, 'This is his gun.' The officers had a charge against appellant for assault with intent to murder and he was formally placed under arrest. Appellant then turned over to the officers a number of unspent bullets.
The officers gave appellant the Miranda warnings from a card that is now standard procedure and he signed a waiver form. He gave the officers a statement which was written by one of the officers. It was read back to him and he also read the statement after which he signed it in the presence of two officers who witnessed his signature. On voir dire examination out of the presence of the jury, the trial court determined the statement was voluntary and it was admitted in evidence. The statement is as follows:
DATE 12--17--72
'I, (James Smith) /s/ James Smith HAVING been advised of my rights under the FIFTH AMENDMENT to the CONSTITUTION as to compulsory self incriminating, my right of counsel and my right of trial, and knowing that anything that I say may be used against me in a court of law, and knowing that I do not have to make any statement at all do hereby volunteer the following to Sgt. J. A. Barker, who has identified himself as A police officer for the City of Homewood. On Dec. 17, 1972 about 3:00 pm I was at Cora's house on Central Ave. Willie Ezzell was there also, we had went (/s/ J.S) up there together in Ezzells (sic) car. We had been in a fuss about a woman, I thought it was all over untill (sic) this morning, when Ezzell told me he had called his son and told him about our trouble, he said he will be over here in a few minutes. When his son came he had about four other guys with him, one of them had a 38 cal. pistol. They all came to Coras (sic) house. Ezzell told them that...
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