St. John v. State, 7 Div. 329

• Decision Date: 02 May 1978
• Docket Number: 7 Div. 329
• Citation: 358 So.2d 812
• Parties: Jackie Sue ST. JOHN v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 812

358 So.2d 812

Jackie Sue ST. JOHN v. STATE.

7 Div. 329.

Court of Criminal Appeals of Alabama.

May 2, 1978.

R. O. Hughes, Birmingham, for appellant.

William J. Baxley, Atty. Gen., and Mary Jane LeCroy, Asst. Atty. Gen., for the State, appellee.

LEIGH M. CLARK, Retired Circuit Judge.

This case has been before us on appeal once before. St. John v. State, 54 Ala.App. 672, 312 So.2d 77 (1975). It was therein held that the record was not filed in this Court on time, and an order was entered dismissing the appeal.

On September 7, 1977, defendant herein obtained an order of the United States District Court for the Northern District of Alabama, St. John v. Alabama, (No.Dist.Ala., CA-77-A-0928-M), granting her petition for habeas corpus, "subject to the right of the State of Alabama to reinstate the appeal of petitioner and conduct an appellate review on the merits of said conviction, or in the alternative, to grant petitioner a new trial . . . ." On December 5, 1977, on motion of the State of Alabama, we reinstated the appeal, ¹ and the case on appeal was submitted on briefs on February 6, 1978.

Defendant was convicted of murder in the first degree of Raymond St. John, defendant's father-in-law, and sentenced to imprisonment for life.

The evidence shows conclusively that on the afternoon of November 24, 1972, while defendant and Raymond St. John and others were in or about the yard of a trailer in which defendant and her husband were living, or had lived in the then recent past, defendant shot Raymond St. John with a pistol. One bullet penetrated his chest at the left nipple, went through his left lung and lodged beneath the skin in the back: another bullet penetrated the victim's body in the left shoulder area and lodged beneath the skin in the back of that area. The pistol was fired by defendant between four and six times. Mr. St. John was promptly taken to a hospital and died on December 1, 1972.

Others present at the time and place of the shooting included defendant's husband, Larry St. John; another son of the victim, James Ray St. John; appellant's mother, Geneva Patterson, and defendant's mother's brother, Delbert Smith.

As to the issues raised by the plea of not guilty, which included an asserted defense of self-defense, the evidence for the State was in irreconcilable conflict with the evidence for the defendant.

According to the testimony of Larry St. John and James Ray St. John, Larry and James and their father and others had been working that day on a house that was in the process of being roofed, which to that stage had been recently constructed by Larry and others on the lot on which the trailer was located and approximately ten feet southeast of the trailer. About 3:30 P.M., defendant arrived in an automobile with her mother, Geneva Patterson; the daughter of defendant and Larry, Teretha St. John, a mere child; Elbert Smith, a brother of Geneva Patterson, and Sharon Patterson. While there, defendant talked with Larry and asked him for some money for their daughter, stating that she was sick and needed some orange juice. Larry said he gave her ten dollars. According to the testimony of both Larry and James Ray, defendant observed Mr. Raymond St. John, verbally abused him, calling him, inter alia, a "S.O.B.": there was a physical encounter between her and Mr. St. John, and defendant's mother physically pulled defendant away from the deceased at that time, striking defendant with a purse. Defendant picked up a "stick," which was otherwise identified as an old rake handle, raised it over her head and walked toward Mr. St. John. Larry grabbed the rake handle and words were exchanged between him and defendant.

The two brothers further testified that thereafter defendant went into the trailer and soon came out of it with a pistol in her hand. She started firing in the direction of Mr. Raymond St. John and his two sons. The two sons succeeded in dodging the bullets, but two bullets struck Mr. St. John, dropping him to the ground. According to the two brothers, defendant was advancing toward Mr. St. John as she was firing the gun: they denied that defendant had come out of the trailer with a handbag in one hand and her daughter, Teretha, at the other hand; and that their father ran at her with an open pocket knife; and she then started firing into the ground. Mr. St. John was not abusive of defendant and did not attempt to harm her.

The testimony of defendant and her mother, Geneva Patterson, was diametrically opposed to the testimony of the witnesses for the State as to material circumstances immediately preceding the firing of the pistol by defendant and the wounding of Mr St. John. Defendant and her mother testified that while defendant and Larry were engaged in a discussion about their marital problems and the needs of defendant and Teretha, their daughter, Raymond St. John came up and cursed defendant for swearing out a warrant for Larry and threatened to strike defendant. She moved over under a pine tree where Raymond St. John hit her in the mouth, knocking her backward and causing her nose and mouth to bleed. Defendant then picked up a stick and when she raised it, her mother snatched it out of her hand. After this, Raymond St. John "patted his pocket" and went to his truck on the premises. Upon his return from the truck Mr. St. John put the blade of a knife to her throat, marking it, and threatened to kill her. With her mother's help, defendant pulled herself away and ran into the trailer, or mobile home, where she picked up a pistol and placed it in her purse. She came out of the trailer with the purse in one hand and holding her daughter by the other, and started walking toward her mother's automobile. At that time, Mr. St. John approached her with a knife in his hand and screamed that he was going to kill her. According to defendant and her mother, defendant placed her daughter behind her and pulled the pistol from her purse as she backed away from Mr. St. John: she fired four shots into the ground, and as he continued approaching with a knife, she fired at him. Mr. St. John lunged and fell on defendant, with his knife pressing at her throat still threatening to kill her. Defendant and her mother said that instead of defendant's advancing on Mr. St. John, defendant was backing away from him and pleading with him not to hurt her.

Delbert Smith testified as a witness for defendant, his niece. Smith substantially corroborated the testimony of defendant and her mother.

During the cross-examination of Larry St. John, defendant's counsel made an inquiry as to the testimony of Larry at the preliminary hearing of defendant for the shooting of Mr. St. John. He was asked whether he testified on the preliminary hearing that he was divorced. The court sustained the State's objection to the question. He was further asked whether at the time of the shooting he had in his possession or under his control, a decree of divorce. The court sustained the State's objection to that question also. The witness had testified to the effect that the divorce proceeding was pending, but that he and defendant were still married at the time of the shooting. According to him, they had not lived together as man and wife for approximately four days prior to the shooting.

We see little reason for any objection to the questions. We also fail to see any value to the defendant for answers to the questions. There was no conflict in any of the evidence on the trial of the case now before us on appeal as to the marital status of defendant and Larry at the time of the difficulty between defendant and her father-in-law. The evidence was clear that at that time they were still married. If Larry had said previously that they were divorced, the statement or testimony would have been inconsistent with his testimony on the trial, but the fact that he may have made such statement or given such testimony theretofore was not material to the issues before the court and jury on the trial of this case.

The testimony of a witness cannot be impeached on an immaterial matter, Morris v. Kaiser, 292 Ala. 650, 299 So.2d 252 (1974). That a witness has made a conflicting statement to that of his testimony in a case is not material, if the fact that he made the contradictory statement is not admissible for any other purpose in the case than to show the contradiction. Gamble, McElroy's Alabama Evidence, § 156.01(5) (1977).

Where there is no conflict in the evidence as to a particular matter, where the testimony of a particular witness is in complete accord with that of all the other witnesses in the case as to the matter, and where such testimony is in conformity with the position taken by a party seeking to impeach the witness, the fact that he has made a contradictory statement theretofore is wholly immaterial to the issues being tried. Jay v. Sears, Roebuck & Co., Ala.Civ.App., 340 So.2d 456 (1976).

In some questions asked Larry St. John on cross-examination, it appears that defendant's counsel was attempting to show bias on the part of the witness against defendant. We agree with appellant that great latitude is to be allowed a party in an effort to show bias of an important witness as to contested issues in a case. Wells v. State, 292 Ala. 256, 292 So.2d 471 (1973); Wilson v. State, 195 Ala. 675, 71 So. 115 (1916). We find, however, that the record does not show any specific instance in which the court sustained the State's objection to a definite question asked Larry St. John by defendant's counsel that would have called for an answer that would tend to show bias. Counsel for defendant seems to think, and counsel for defendant on the trial of the case different counsel from counsel on appeal seemed to think, that the court was inclined to not allow him the latitude to which he was entitled in attempting to show bias on the part of the witness; but we must rule as to this point on the rulings of the trial court only, and...