Tate v. State

• Decision Date: 31 August 1976
• Docket Number: 1 Div. 699
• Citation: 337 So.2d 13
• Parties: Linda Louise TATE v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 13

337 So.2d 13

Linda Louise TATE v. STATE.

1 Div. 699.

Court of Criminal Appeals of Alabama.

Aug. 31, 1976.

T. M. Brantley, Bay Minette, for appellant.

William J. Baxley, Atty. Gen., and Joel E. Dillard, Asst. Atty. Gen., for the State.

RILEY P. GREEN, Circuit Judge.

Appellant was indicted for murder in the first degree, tried and convicted of murder in the second degree with sentence by the jury at fifteen years imprisonment.

The jury was polled. Each separate juror affirmed that the verdict was the verdict of the twelve jurors.

There was no motion for new trial, but there was a request for the affirmative charge.

The victim of the homicide was the appellant's husband, Ernest Tate. The homicide occurred on Sunday, August 24, 1975, in the police jurisdiction of the City of Fairhope. The deceased was a member of the Fairhope Police Department. He was not on duty when he received five .38 caliber bullets from his 6-shot police revolver creating ten entrance and exit wounds to his body. All bullets entered the body from the right side. The bullet which probably caused instant death entered the right side of the head and passed through the brain. The deceased was found with his upper body on the ground with his legs through the open left door with his feet in the floor of the driver's side of the automobile.

We have carefully considered the entire record under Title 15, Section 389, Code, including all of the testimony, even though no lawful objection was made, and find none prejudicial to the rights of the appellant.

Appellant urges reversible error from objections being sustained to several questions propounded to witnesses Ida Martin and Jerry Wainwright. The evidence sought to be elicited was subsequently received and heard by the jury notwithstanding the rulings by the Court. If there was any error in sustaining the original objections, which we don't concede, it was corrected by subsequently admitting the evidence by further questions to the witnesses Martin and Wainwright, and by appellant's own testimony which was not disputed. 7 Alabama Digest, Criminal Law, k1170(2).

The verdict is amply supported by the evidence. In fact, appellant voluntarily testified she shot her husband while he was seated in his parked automobile on a public street; that she was scared of the deceased and she got his revolver from their residence and drove approximately two miles to the scene of the homicide; that she parked her automobile near his automobile and opened the door on the passenger's side of the deceased's automobile but did not get in the automobile; that they cursed one another; that they passed quite a few licks, but she never got entirely inside the automobile; that she did not know why she removed the pistol from her purse and shot him while she was outside of the automobile; that she might have lost her head, and when she came to her senses, she was in jail. Under the evidence, the issue as to the appellant's guilt was clearly for the jury's determination. The evidence was not only sufficient to take the case to the jury on first degree murder, but was sufficient to support the verdict returned. The refusal of Charge 9, affirmative in nature, was proper and without error.

The trial judge clearly and fully expounded the applicable law in its oral charge to the jury, to which no exception was taken. Counsel representing appellant on this appeal represented her on trial. It is insisted that reversible error is made to appear in refusing all charges requested by appellant. Many charges refused were identical to forms cited in Jones, Alabama Jury Instructions. Requested charges must be acted upon by the trial judge in the terms in which they are written. Title 7, Section 273, Code. The fact that a written instruction is copied from an opinion of an appellate court does not assure its acceptability. Hanby v. State, 39 Ala.App. 392, 101 So.2d 553 (1957). Each charge has been considered in view of the evidence. We find no ground for reversal.

The appellant requested the following charges, which were refused:

'A. I charge the jury that your verdict must be unanimous, if any member of the jury has a reasonable doubt as to the guilt of the Defendant you cannot render a verdict at all but must mis-try the case.

'1. The Court charges the jury that, if there was sufficient provocation to excite certain passion and Linda Tate acted under such passion, then the presumption is that passion disturbed the sway of reason and made her regardless of her act; and if the jury believes this from the evidence, they should not find the Defendant guilty.

'2. The Court charges the jury that, if the killing in this case was without malice, the Defendant would not be guilty of a higher grade of offense than manslaughter in the first degree, even though she was not wholely excusable.

'3. I charge the jury that, if you believe from the evidence in this case that on the occasion of the deceased's death the Defendant became so frightened that she was unable to avoid shooting the Deceased and that the shooting would have been averted had the Defendant not become frightened and the deceased's death was the sole proximate result of the Defendant's becoming frightened and losing control of herself, you must find the Defendant not guilty.

'4. If any of the witnesses for the State have exhibited or admitted bias, prejudice, anger or ill will against the Defendant; or, from the evidence in this case you find such bias, prejudice, anger or ill will on the part of all or any of the State's witnesses, and if these things when considered in connection with the other evidence in this case creates in your minds a reasonable doubt of the Defendant's guilt, you should acquit.

'5. The Court charges the jury that, if you find from the evidence in this case that the deceased first used verbal insult toward the Defendant without provocation and then assaulted the Defendant, the Defendant had the right to defend herself from aggression on the part of the deceased; and, if you find the Defendant did not fight willingly and had no reasonable means of escape without increasing her real or apparent danger and if you find that under the circumstances existing at the time the Defendant shot she honestly believed that she was in imminent danger to her life or limb and the conditions at that time were such as would have impressed upon the mind of a reasonable person that there was imminent danger, though there was no such danger in fact, but that it was only apparent, the Defendant would have been justified in shooting the deceased.

'6. The Court charges the jury that, if you believe from the evidence that the killing in this case resulted from heat of passion engendered by the deceased's activities in relationship with another woman and that the killing resulted solely from anger or heat of passion so engendered, the Defendant can not be convicted of murder.

'7. The Court charges the jury that it is the duty of the jury to consider the evidence tending to show a justifying motive in connection with the other evidence in this case and if they are in reasonable doubt of her guilt, you should acquit Linda Tate.

'8. The Court charges the jury that, if you are reasonably satisfied from the evidence that Linda Tate was free from bringing on the difficulty between herself and the deceased, that there was present a necessity either real or apparent to shoot her husband to protect herself from either real or apparent danger and she had no other reasonable means of escape from such danger, she was justified in shooting him and you must find her not guilty.

'9. The Court charges the jury that, if you believe the evidence in this case, you must find the Defendant not guilty.

'10. The Court charges the jury that, in determining whether the Defendant was in fact frightened by the deceased, you should consider the relative size of the deceased and the Defendant and whether or not the deceased had heretofore abused the Defendant and the degree of such abuse.

'11. The Court charges the jury that, if the killing was a result of a sudden blow which aroused the Defendant to sudden action or if you have reasonable doubt as to whether the killing was a result of passion suddenly aroused by a blow from the deceased, then you can not find the Defendant guilty of murder.

'12. If the jury believes from the evidence that the deceased was of a violent character, you are to take such evidence into consideration in determining the degree of the Defendant's guilt providing you find her guilty.

'13. I charge you, gentlemen of the jury, that if one of your number has a reasonable doubt of defendant's guilt, you cannot convict defendant.

'14. The Court charges you, gentlemen of the jury, that, if, upon considering all the evidence, you have a reasonable doubt about the guilt of the defendant, arising out of any part of the evidence, you must find the defendant not guilty.

'If the evidence, or any part thereof, after a consideration of the whole of such evidence, generates a well-founded doubt of defendant's guilt, the jury must acquit her.

'15. The court charges the jury, if, after considering all the evidence in the case, that tending to show guilt, together with that tending to show innocence, there should spring up involuntarily in the minds of the jury from any part of the evidence a probability of the innocence of the defendant, the jury must acquit.

'If the evidence in this case convinces the jury that there is a probability of the defendant's innocence, then your verdict should be not guilty.

'16. The Court charges the jury that the indictment in this case is not any evidence in the case, and the fact that defendant has been indicted is not to be considered by you as a circumstance against her, but said indictment is merely the method of placing defendant on her trial, but the presumption of innocence attends the defendant throughout this trial and remains with her and...