Stallings v. State

• Decision Date: 31 July 1947
• Docket Number: 4 Div. 447.
• Parties: STALLINGS v. STATE.
• Court: Alabama Supreme Court

32 So.2d 236

249 Ala. 580

STALLINGS v. STATE.

4 Div. 447.

Supreme Court of Alabama

July 31, 1947

Rehearing Denied Oct. 30, 1947.

D M. Powell and Powell & Hamilton, all of Greenville, and Richard T. Rives and Hill, Hill, Whiting & Rives, all of Montgomery, for appellant.

A A. Carmichael, Atty. Gen., and MacDonald Gallion, Asst. Atty. Gen., for the State.

To the Supreme Court of Alabama.

Under the provision of the Statute, Title 13, Section 100, of the Code of Alabama 1940, the case of Guy Stallings v. State, appealed from the Circuit Court of Crenshaw County, Alabama, is hereby certified to the Supreme Court for consideration and decision. 32 So.2d 227.

The conditions necessitating this action are as follows. (1) Judge Harwood, one of the judges of this court, is disqualified, and has recused himself on the grounds that as former Attorney General of the State, he was of counsel in this proceeding.

(2) The remaining two judges of this court are divided as to the decision of the case, hence this action of certifying it to your court.

Accompanying the record, as originally submitted in this court, are also the briefs of respective counsel that have been here filed. In addition thereto the several opinions promulgated by the appellate courts in this case.

For your further information the history of this case in this court, and the incident orders made by the court are as follows:

(1) May 10, 1945, 'Argued and submitted.'

(2) June 19, 1945, 'Affirmed.'

(3) July 2, 1945, 'Application for rehearing.'

(4) December 4, 1945, 'Application for rehearing granted. Reversed and remanded.'

(5) December 18, 1945, 'Application for rehearing by the State.'

(6) January 15, 1946, 'Application for rehearing overruled.'

(7) June 27, 1946, By the Supreme Court, Certiorari granted, cause reversed and remanded to this court for further consideration.

Presented, on this appeal, are several insistences of error not heretofore considered and decided.

Certified on this the 26th day of February, 1947.

C. R. BRICKEN, Presiding Judge Court of Appeals of Alabama.

FOSTER Justice.

This appellant was convicted of murder in the second degree, and his punishment fixed at ten years in the penitentiary. The deceased was Lawrence Rogers, and was killed on the night of April 12, 1944. The defendant lived with his father, Willie Stallings, his mother and sister on the east side of the Honoraville and Black Rock Road extending north and south. Their place of residence was about half a mile north of the intersection of another road from the west, extending into that one, on which latter road deceased lived with his father and two brothers, about a quarter or half of a mile from the intersection of the two roads. James Rogers, a brother of deceased, was present and witnessed the killing of Lawrence Rogers. Deceased was twenty years old, four feet nine inches tall, and weighed eighty pounds. James Rogers was eighteen years old. The defendant was twenty-three years old.

That afternoon when the day's work was over on the farm, defendant started on his bicycle down the road south toward Charlie Lowery's who lived on the Honoraville and Black Rock Road south of the intersection mentioned above. He stopped in front of Acreman's house near the intersection. R. J. Sexton was there. He lived father north on the same road. Sexton had shot Hubert Rogers, a brother of James Rogers and of Lawrence Rogers, deceased. James and a negro named Lowery had carried Hubert off for treatment and were returning in a pickup truck, and saw defendant and Sexton together. They went home, and he and Lawrence returned, and James testified that they were going to Well's store on that road farther north from the Stallings' home. After defendant went down the road and was returning, he saw James and Lawrence coming toward the road defendant was on. They were walking east from the direction of their home, and defendant was then again at Acreman's on his return trip. Defendant claims that he then heard deceased, Lawrence Rogers, say 'old Guy Stallings, I will kill that son of a bitch before bedtime.' Defendant then got on his bicycle and went north on that road to his home. James Rogers claims that they did not then see Guy Stallings at that time; that they proceeded along the road north by the Stallings' house. James Rogers testified Mr. Stallings was out in front of the house and flashed the light in their faces and said, 'What you boys doing cursing out here?' 'I said, ain't nobody cursing, and we walked on and he came with his light and said, 'Wait a minute, let's see if you got any liquor on you.' We didn't stop and kept walking. We walked a few more steps and the gun fired. I stopped when my brother fell in front of me. I turned around and faced them and Mr. Stallings turned to his boy and said, 'guy, I told you not to do that.' I stayed there and he told Guy to get Mr. Alvin Turner to go after the law. I saw Guy Stallings there. He was four good steps behind us in the same rut I was in. He had a twelve gauge shotgun in his hand. If Mr. Willie had a shotgun I didn't see it. We stood there and I made a step back toward them and Guy stepped back and cocked his gun in my face and told me not to come no further and I stopped.' He further tesified that at the time the shot was fired he and his brother Lawrence both had their backs to the man who fired the gun. The evidence shows that the shot entered the right side of the deceased's face and lodged in the back part of the head to the right of the median line of the face.

Defendant testified that as he was proceeding toward his home, he was followed by James and Lawrence and one of them called to him to wait, but he kept on and they continued to follow him up the road to his father's house cursing and threatening him. Defendant went in the house. The family was eating supper. He refused to eat anything, went out on the back porch and got a drink of water, came back to the dining room and said something to his father, who a little after that went out on the back porch and sat there for awhile. The deceased and his brother James came on up the road, made threats against the defendant, called him vile names, entered the yard with the avowed purpose of taking the defendant from the house and killing him. Defendant's father, after going out on the back porch and hearing voices coming from down the road toward his house, went to the front porch and heard them as they approached. He heard them make threats about getting the defendant out and saw them as they entered his yard. They were approaching the steps, still threatening when the father stopped them. They then went back outside the yard. One of them called to Willie Stallings to come out that they wanted to talk to him. He complied with their request, came on out and stopped at the mail box by the road and said they would talk the matter over there. James said no, that they would go on down the road and talk. The father went a short distance with them and then said he would not go any further. When this was said both Lawrence and James Rogers turned on the father and Lawrence cut at him with his knife. When he did this the defendant, who was eight or ten feet to the rear, fired the shotgun, the contents entering the right of Lawrence Rogers' face, resulting in his death. The testimony on the part of the defendant shows that nothing was said or done to provoke the difficulty, that both Lawrence and James Rogers had their knives open, that Lawrence's attempt to cut Willie Stallings was entirely unexpected, and that under these circumstances the shot was fired. When Lawrence Rogers fell an empty quart bottle fell out of his bosom. It had a few drops of whiskey in it. There was also evidence showing that on their way to Stallings' home the Rogers brothers had a bottle of liquor, that Lawrence took a drink from it, that they came in contact with R. J. Sexton and tried to get him to take a drink, but he was running from them at the time and ran in the house of one Needham Skipper.

On the trial many rulings were made and exceptions taken. We will discuss those insisted on in appellant's brief which seem to need discussion.

That afternoon, defendant testified, that he started down to Charlie Lowery's (which was farther down the Honoraville and Black Rock Road beyond the Butt's place where defendant stopped). His attorney asked him if his father sent him there. Objection was sustained and exception taken. It is not shown that his purpose in going there and that his father sent him were material to the issues. The fact that he went down the road and on that trip saw deceased and his brother, and what occurred in their relations, would seem to be the material matters in relation to that trip.

The court refused charge 9. Certain features of it are abstract. The defendant in shooting the deceased was not defending his home, and did not so claim, but claimed to be defending his father...