Stockard v. State, 6 Div. 132

CourtAlabama Court of Criminal Appeals
Citation391 So.2d 1049
Docket Number6 Div. 132
PartiesHerbert STOCKARD v. STATE.
Decision Date20 November 1979

Edward R. Jackson of Tweedy, Jackson & Beech, Jasper, for appellant.

Charles A. Graddick, Atty. Gen., and C. Lawson Little, Asst. Atty. Gen., for appellee.

LEIGH M. CLARK, Retired Circuit Judge.

Appellant was convicted of murder in the first degree of Beverly Stockard, the wife of appellant.

The evidence presented by the State was lengthy, consisting of testimony of several witnesses that, when taken together, established almost conclusively that the victim was killed by a bullet from a pistol about eight or nine o'clock on the night of August 26, 1978, while defendant and the victim were sitting in the cab of defendant's pickup truck while the truck was at a trailer park at Curry, Walker County, Alabama. Testimony presented by defendant was relatively brief, consisting merely of the testimony of defendant himself.

Details of the lengthy evidence without any material bearing on the issues presented on appeal need not be stated. We endeavor to summarize the evidence in material respects.

According to the undisputed evidence, both defendant and his wife were highly intoxicated at the time of the fatal incident, and for a long time before. During the day they together had consumed between forty and fifty cans of beer at a ratio between him and her of about four to three. A short time before she was killed, they were both trying to get some more beer to drink.

The defendant and the victim had been married about three years. He was between thirty-four and thirty-seven years old, and she was forty-four. Her daughter and her daughter's children were living at one of the mobile homes or trailers of the trailer park where Beverly Stockard was killed. The victim's daughter had been married, but she was divorced. Defendant and his wife arrived at the trailer park about 6:00 P.M. While there, considerable argument, fussing and quarrelsome conduct ensued between the two. Defendant was complaining that his wife had left him once before, and that she was attempting to do so at that time. According to the witnesses for the State, including the victim's daughter, he made threats that he would kill his wife, and manifested threatening conduct by getting out of the truck with a pistol in his hand and brandishing it. Around eight o'clock defendant and his wife left the particular trailer park in his truck but returned in a short time, which was estimated by some of the witnesses at ten minutes. About the time the truck came to a stop, there was a pistol shot within the driver's compartment of the truck. Those that heard it or saw the fire from the pistol were startled but apparently did not know with certainty what had occurred until afterwards. According to the defendant's testimony, he did not fire the pistol, but he noticed immediately that his wife was badly hurt, and he proceeded forthwith to drive her to the hospital, where she was pronounced dead.

Defendant took the position on the trial that (1) Mrs. Stockard had committed suicide or (2) that defendant was too intoxicated to be guilty of murder, or both (1) and (2).

As to (1), there is little contention on appeal. It is sufficient, we think, to state that under all the circumstances, particularly unequivocal testimony of definite threats by defendant to kill her with the pistol that killed her, a jury question on that issue was presented.

As to (2), appellant strongly urges that the undisputed evidence shows that defendant was so intoxicated that he could not have had the specific intent essential to murder in either degree, or premeditation and deliberation essential to murder in the first degree. There is little, if any, disagreement between the parties as to the principle of law involved. There has been uniform acceptance of the statement:

"Voluntary drunkenness neither excuses nor palliates crime. But in murder cases evidence of drunkenness to such degree that the accused is incapable of rational action and hence incapable of performing a specific intent essential to a malicious killing may reduce the killing to manslaughter, or may negative the premeditation and deliberation essential to murder in the first degree, or reduce the crime to murder in the second degree. Ivory v. State, 237 Ala. 344, 186 So. 460; King v. State, 90 Ala. 612, 616, 8 So. 856." Helms v. State, 254 Ala. 14, 19-20, 47 So.2d 276, 281 (1950)

In accord with Helms and cases cited therein are Gautney v. State, 284 Ala. 82, 222 So.2d 175 (1969); Green v. State, Ala.Cr.App., 342 So.2d 419 (1977); Jones v. State, Ala.Cr.App., 362 So.2d 1303 (1978).

Although the facts as to the means and method by which the victim was killed in Helms are considerably different from such facts in the instant case, the evidence as to a long period of drinking and the extent of the intoxication of both defendant and the victim in that specific uxoricide is markedly similar to the evidence in this case. It was there held that it was within the province of the jury to decide, as it did, that defendant was not so intoxicated as to be incapable of committing murder in the first degree. Such is our conclusion in this case. Incredible as it may be that the two could have drunk as much beer as they did without being "dead drunk," the undisputed evidence is that they were not that drunk. The undisputed evidence to the effect that the mind of defendant was clear enough for him to conduct himself as he did, moving here and there in his truck without positive objection by his wife, or by any of his other acquaintances at the trailer court, and that he instantly perceived after his wife was shot that he should drive her to the hospital, which he successfully did, at a rate of speed of between forty and seventy miles an hour, furnishes substantial, if not unquestionable, support for a finding by the jury that he was not so intoxicated that he did not have the mental ability to commit murder in the first degree.

During an extensive cross-examination of defendant, the following occurred:

"Q. In fact, you drove that truck by yourself, didn't you?

"A. Yes, sir, I did.

"Q. Were you drunk at that time?

"A. Pretty well drunk.

"Q. So, you were really driving while intoxicated weren't you?

"A. Yes, sir.

"Q. You were on the highways of this county endangering the lives of innocent people while you were drunk is that right?

"A. Yes, sir.

"MR. TWEEDY: This is certainly immaterial. It is prejudicial. Put in there deliberately by the District Attorney in this case to try to prejudice this defendant with the jury. I ask the Court to instruct the jury not to consider that.

"COURT: Ladies and Gentlemen of the jury, disregard the last statement of the District Attorney.

"MR. TWEEDY: Also, I would like to ask the Court to instruct the District Attorney not to use such matters that he knows are prejudicial and not competent evidence in this case and if he continues to do it I will ask the Court to enter a mistrial in this case.

"COURT: I deny that request.

"MR. TWEEDY: We except."

Appellant now urges that the court erred in failing to grant a mistrial by reason of the questions asked as quoted above. It must be noted that defendant did not ask for a mistrial at the time. Whether he would was conditioned upon the future conduct of the District Attorney. Although the question asked was after a declarative sentence of the questioner, which was argumentative, any prejudice to defendant was not of an ineradicable nature and did not warrant a mistrial.

Appellant complains by reason of the testimony of defendant's mother to the effect that after the shot that killed Mrs. Beverly Stockard, defendant came by his mother's house before going to the hospital, which appellant says constituted an effort to impeach defendant on an immaterial matter, defendant having theretofore testified that he made no stops along the way in taking his wife to the hospital. We find no objection to the testimony of which appellant now complains. Furthermore, the particular evidence, although introduced by the State in rebuttal, was not offered in impeachment of defendant's testimony but in "mere contradiction" thereof. See Lusk v. State, 129 Ala. 1, 30 So. 33 (1900); Bell v. State, 124 Ala. 94, 27 So. 414 (1899); Gamble, McElroy's Alabama Evidence, § 176.01(8) (1977).

Another assertion of error is based upon the court's overruling defendant's objection to a portion of the argument to the jury by counsel for the State as now quoted:

"Let's talk about another matter at this time. They talk about Mrs. Stockard that the state had to call as a witness. I didn't enjoy doing that. I wish I didn't have to call the mother to the witness stand to testify. I didn't enjoy that.

"MR. JACKSON, Judge, I enter an objection to that comment on who we call and who we don't call. Let it reflect back to the objection that was made as to the evidence commented on about us calling fingerprints and everything like that. It is improper argument and illegal argument and we enter objection as to calling Mrs. Stockard and checking fingerprints.

"COURT: Overruled.

"MR. JACKSON: We except."

Appellant argues that the State was allowed to argue that they had to call "the defendant's own mother to the witness stand to make the defendant out a liar." We agree that the words "had to call" in the argument for the prosecution could conceivably have carried with them the implication that the State had to call her as a witness because defendant did not do so, but it is clear that counsel for the State intended no such implication and that a more reasonable construction of the words in their context is that the asserted involuntariness in calling the witness was by reason of the natural disinclination to ask a mother to testify against her son. We do not doubt the sincerity of any imputation of ingeniousness, instead of ingenuousness, to be found in the...

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