Strickland v. State, 5 Div. 560

• Decision Date: 18 August 1959
• Docket Number: 5 Div. 560
• Citation: 115 So.2d 273,40 Ala.App. 413
• Parties: Madison STRICKLAND v. STATE.
• Court: Alabama Court of Appeals

Page 273

115 So.2d 273

40 Ala.App. 413

Madison STRICKLAND v. STATE.

5 Div. 560.

Court of Appeals of Alabama.

Aug. 18, 1959.

Rehearing Denied Sept. 8, 1959.

Walker & Walker, Opelika and R. C. Wallace, LaFayette, for appellant.

MacDonald Gallion, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for theState.

These charges were refused to defendant:

'32. You are instructed that you are authorized to take into consideration the physical facts and circumstances surrounding the case, and if the testimony of any witness is in conflict with such physical facts, then the jury may take into consideration such conflict in determining what weight they will give to the testimony of such witness.

'33. The court charges the jury that if any of the State witnesses have exhibited prejudice or anger against the defendant, and satisfied you that they have not testified truly, and are not worthy of belief, and you think their testimony should be disregarded, you may disregard it altogether.'

CATES, Judge.

Strickland was convicted in the Chambers Circuit Court of second degree murder for shooting Mrs. Bessie Catherine Crenshaw with a pistol. The jury fixed his punishment at twenty years' imprisonment. He appeals from both the judgment of conviction and the order denying a new trial.

The principal questions raised are: (1) Was Strickland in double jeopardy because of a prior conviction of murdering Mrs. Crenshaw's fourteen year old son, Charles Gordon, (2) were his requested charges 28, 29, 32 and 33 rightly refused, and (3) was the State entitled to offer testimony of civil settlement by Mrs. Crenshaw's administrator?

The tendency of the State's evidence, on the trial of the merits, was:

Strickland had for some two years until a few weeks before been courting Mrs. Crenshaw's daughter, Mrs. Myrtis Doler. On August 30, 1958, he came to the Crenshaw's house and went off with Thomas Crenshaw to get a cup of coffee.

The two men were sitting in a parked car when Mrs. Crenshaw, a number of her sons and Myrtis, with her two small children, passed them. Strickland and Thomas Crenshaw gave chase and overtook the Crenshaw family car.

The two cars stopped and Strickland went back to the other vehicle and said, 'I want to talk to Myrtis.' She replied, 'I ain't gonna do it.' One witness said Strickland rejoined, 'Hell yes, you are.'

What occurred next is not clear. Thomas Crenshaw's testimony was that Strickland went around the car and some one shouted, 'He's on Mamma, Thomas.' Thomas 'sort of bounced over the back of the car,' and lunged for Strickland as he was pulling a pistol.

Fourteen year old Charles Gordon Crenshaw and his mother were shot to death and Mrs. Doler was wounded by three bullets.

Three steel jacketed bullets and five cartridge hulls were found at the scene. Another bullet was taken from Mrs. Crenshaw's body.

Strickland's evidence was to the effect that he was the victim of an unprovoked assault, that he had pulled the pistol to scare off the Crenshaw boys when some one hit him several blows across the hand with a wrench and that this may have caused him to squeeze the trigger. Possibly his struggle to fend off two Crenshaws, one coming at him with a knife and another with a club, may have caused the gun to fire.

On the double jeopardy pleas, Strickland claimed that a single bullet killed both Charles Gordon Crenshaw and his mother. On cross-examination, on the trial of these pleas, Strickland said he was in no 'position to see where the bullets were going.'

We see, on the record before us, nothing but a question of fact for the jury on this issue. We consider the dictum in Kilpatrick v. State, 257 Ala. 316, 59 So.2d 61 (see also Ladner v. United States, 358 U.S. 169, 79 S.Ct. 209, 3 L.Ed.2d 199), as making correct the trial judge's statement to the jury that the question was whether 'the same bullet killed two people.' As to the special issue trial, no exception was taken to the oral charge nor were any written charges requested.

Ground 3 of the motion for new trial claimed the special verdict in favor of the State was contrary to the evidence. The trial court did not err in overruling the motion on this point. Strickland had the burden of proving the same bullet killed mother and child.

The oral charge did away with the need to charge as requested in charges 28 and 29. Code 1940, T. 7, § 273, 4th sentence.

Charge 32 as to conflict of a witness's testimony, with 'the physical facts and circumstances surrounding the case,' is misleading, since it does not expressly confine itself to the facts and circumstances shown by the evidence. Jurors are no longer witnesses. Also, the court's oral charge adequately covered the duty to reconcile, if possible, the testimony of all witnesses. All the evidence (including exhibits) came from the witness stand.

Charge 33 was properly refused. Morris v. State, 252 Ala. 607, 42 So.2d 600; Head v. State, 35 Ala.App. 71, 44 So.2d 441.

Over timely defense objection, Thomas and Bobby Crenshaw testified that Strickland's brother and sister arranged a $2500 settlement of the civil claims of the five Crenshaws for the deaths of their mother and brother.

The State, no doubt to head off expected cross-examination, brought out that Thomas and Bobby Crenshaw, winesses for the State, had given false sworn written statements before Strickland was tried.

The matter was first raised when the solicitor asked Thomas, 'State whether or not you received any money from Owen Strickland [defendant's brother] in Roanoke?' The trial judge overruled a defense objection based on immateriality.

This line of questioning brought out that Owen Strickland paid Thomas and his brother, Byron, $50...