Smith v. State, 7 Div. 319
| Decision Date | 17 December 1974 |
| Docket Number | 7 Div. 319 |
| Parties | Bobby Wayne SMITH v. STATE. |
| Court | Alabama Court of Criminal Appeals |
H. Merrill Vardaman, Anniston, for appellant.
William J. Baxley, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State.
Appellant was indicted for murder in the first degree and convicted of manslaughter in the first degree with his punishment fixed at ten years imprisonment in the penitiary. He was represented at arraignment and trial by a court-appointed lawyer. He pleaded not guilty. He was furnished a free transcript and new consel was appointed to represent him on appeal.
This unfortunate homicide occurred on Thanksgiving Day, November 22, 1973, in the street in front of the home of Mr. and Mrs. Charles Messer at 301 Chestnut Street, Anniston, Alabama.
Appellant and the deceased, Markquette Champion, were formerly husband and wife but had been divorced ten years before the date she was shot and killed. After her divorce from appellant, she married Jerry Patrick Champion, and they had a three-year old son at the time of her untimely death. Markquette and her second husband had been separated one month before her death.
The day before Thanksgiving Day, appellant came to the Messer home where the deceased and her son were staying. He brought his two sons with him. They all decided to have Thanksgiving dinner together. Appellant and Markquette went to the market to buy the turkey and all the other things that usually go with a Thanksgiving dinner. Appellant paid the bill. He also bought a six pack of beer. The turkey was cooked the night before. Appellant and his two sons spent the night at the Messer home. They slept on a pallet on the livingroom floor. Markquette and her son also spent the night there. They had a bedroom to themselves. The Messer's and their children had their own sleeping quarters.
The next morning, appellant helped prepare the Thanksgiving feast and they all ate dinner around 1:00 P.M. The adults drank beer before dinner. After dinner appellant left the Messer house.
Appellant had been having a love affair with a woman who will be referred to as 'Sandra' in this opinion. Appellant and Sandra came to the Messer home around 3:00 P.M. on Thanksgiving day. Prior to the arrival of Sandra, appellant and the deceased had been most friendly and had been joking with each other, but the atmosphere and moods of the parties changed noticeably. There was an undercurrent of resentment between appellant's paramour and his ex-wife. Appellant brought a six pack of beer, and they all drank the beer. They agreed to go to a drive-in theatre to see an x-rated movie. The plan was to go in Sandra's car. Sandra and appellant left saying they would return at five o'clock. After they left, the deceased and Mrs. Messer decided they were not going with appellant and Sandra and would go to another drive-in and carry the three-year old son of the deceased.
Deceased, Mrs. Messer and the little boy returned home around 11:00 P.M. and found Sandra and appellant parked in front of the Messer home. The deceased pulled up and stopped behind Sandra's car. Sandra got out of her car and walked to the driver's side of the deceased's car and asked why they did not wait on them to go to the movie, and where they had been. She was told that they decided to go to another drive-in to see 'Walking Tall.' Appellant got out of Sandra's car and walked back to the deceased's car and he appeared to be mad. Mrs. Messer had gotten out of the car at this time and was standing close to Sandra. She heard appellant say something to the deceased but she could not understand the words. The deceased made some slurring remarks about appellant and Sandra and told the appellant to take Sandra and leave and not to come around her any more. Appellant pulled a pistol out of his pocket and pointed it in the face of the deceased and told her he was going to kill her. She told appellant that she was not sixteen years of age any more and was not afraid of his gun. She told appellant to put his gun up and he put it in the right hand pocket of his pants. The three-year old boy was asleep on the back seat of the car, and the deceased asked appellant to pick him up and carry him in the house, and he refused her request. She asked him several more times to carry the child in the house, and he continued to refuse. The deceased got out of her car and leaned back on the front seat to get her car keys and pocketbook, and while she was leaning over, appellant shot her one time in her left hip. Because of her position, the bullet ranged upward and went through her lung and came to rest inside the sac of her heart.
After she was shot she fell back on the grond with her head on the grass. She asked appellant why he shot her and he told her he loved her and didn't mean to shoot her. Mrs. Messer asked her if she was shot and she said yes, and she picked her head up off the grass and appellant got a paper towel and wiped her face and told her not to die. He told her if she wouldn't did he wold never hurt her again. The deceased said to appellant, 'Bobby Wayne, take me to the hospital, you have hurt me bad.' Appellant told Mrs. Messer to call an ambulance and she told him she did not have a telephone, and she was not going to leave Markquette. Mrs. Messer asked Sandra to go for help and she got in her car and left. Appellant still had the pistol in his hand and he looked at Mrs. Messer and said, 'This is an accident', and put his pistol in her pocketbook. When Sandra got back Mrs. Messer told her to take the pistol out of her pocketbook. Sandra took the pistol and put it under her shirt.
The police officers and the ambulance arrived about the same time. Sandra went to one officer and told him she had something to tell him and he told her to wait until the victim was put in the ambulance. The officer then went to Sandra and she took the pistol from her shirt and handed it to him and pointed to the appellant.
Appellant rode in the ambulance to the hospital, and while Markquette was in the emergency room he was arrested and carried to Police Headquarters. He was given the Mranda rights and warnings and made and signed a statement. This statement was never offered in evidence, and appellant did not testify in his behalf. A State Toxicologist performed an autopsy and testified:
'The wound was located on the left rear back, six inches to the left of the midline, and on a level with the navel on...
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