Vander Wielen v. State, 1 Div. 58

CourtAlabama Court of Criminal Appeals
Writing for the CourtPRICE
Citation251 So.2d 240,47 Ala.App. 108
PartiesLouise VANDER WIELEN v. STATE.
Docket Number1 Div. 58
Decision Date06 April 1971

Page 240

251 So.2d 240
47 Ala.App. 108
Louise VANDER WIELEN
v.
STATE.
1 Div. 58.
Court of Criminal Appeals of Alabama.
April 6, 1971.
Rehearing Denied May 4, 1971.

[47 Ala.App. 109]

Page 241

C. Wayne Loudermilch and Charles R. Butler, Jr., Mobile, for appellant.

[47 Ala.App. 110] MacDonald Gallion, Atty. Gen., and Richard F. Calhoun, Asst. Atty. Gen., for the State.

PRICE, Presiding Judge.

Louise Vander Wielen appeals from a conviction for murder in the second degree for the killing of her husband Charles Vander Wielen.

Appellant was jointly indicted with her son, Tommy Davidson, but a severance was granted and appellant was tried separately.

The facts are substantially as follows:

On the morning of May 21, 1968, the body of Charles Vander Wielen was found in the front seat of his automobile which had run off Interstate Highway 10 in Baldwin County Alabama. Death had resulted from a massive hemorrhage to the brain caused by a blow inflicted by a blunt instrument.

The appellant and her son, Tommy Davidson, were arrested by Mobile County Sheriff's deputies on May 28, 1968. They were interrogated and appellant gave a written statement describing the killing of Charles Vander Wielen by Tommy Davidson, allegedly in defense of himself and appellant. On approximately May 30, 1968, a search of appellant's residence was conducted, which produced evidence which, together with appellant's written statement, was introduced in evidence by the state.

The appellant testified that immediately prior to Tommy Davidson's striking Mr. Vander Wielen with a baseball bat the deceased had placed a gun to her head and stated he would give her one minute to say what she had to say. When Tommy struck the first blow she fled from the house. She offered character witnesses in her behalf and evidence of prior threats on her life by deceased.

Defense counsel excepted to this portion of the court's oral charge:

'As to this doctrine of retreat. If the wife, Louise Vander Wielen, was in her own home she did not have to retreat in order to qualify as to retreat under the doctrine of self defense. However, if the assault was committed by Tommy Davidson who was at the most a guest in the home he would be required to retreat before self defense could be asserted unless he was acting in defense of his mother because she would not be required to retreat and therefore he could act without her retreat in order to qualify under the doctrine of self defense. If the assault was upon him directly and not upon the mother then he be required to retreat.'

Counsel insists in brief that since Tommy Davidson was a guest in his mother's house he was under no duty to retreat.

In Thomas v. State, 13 Ala.App. 50, 69 So. 315, the court said:

'If the defendant was a guest of the owner or occupants of the house, there by

Page 242

pre-arrangement with them on their invitation, while in the house in that capacity[47 Ala.App. 111] the law armed him with the right to defend himself Against an unlawful assault from outsiders, he being free from fault, and to employ all necessary force to protect his own life or his person from grievous harm. From this purpose and under these circumstances, he was armed with the same rights of self-defense as if he had been the owner of the house, As to all persons except its lawful occupants; in other words, to that extent this house was his castle for the purpose of defense, and if without his fault he was assaulted there By an intruder, the law imposed on him no duty to retreat therefrom, but he had the right to stand his ground and defend himself even to the taking of the life of his assailant.' (emphasis supplied.) See also Valentine v. State, 19 Ala.App. 510, 98 So. 483; Simmons v. State, 22 Ala.App. 126, 113 So. 466.

Tommy Davidson was married and living in his own home. He came unannounced to his mother's house to borrow her automobile: But even if he could be said to be a guest under Thomas, supra, he had no right to stand his ground as against the lawful occupant of the house. We find no error in the court's charge.

Requested Charges 31 and 35 were properly refused. They ignored Tommy Davidson's duty to retreat and were otherwise faulty.

Appellant contends the affidavit for a search warrant of her house at 4083 Alice Drive, Theodore, Alabama, is wholly inadequate and that it was error to introduce evidence seized as a result of said search.

The appellant testified in support of her motion to suppress that while she had paid the rent and was entitled to occupy the house at the time of the search, all her clothing and furniture had been removed from the house and that at the time of the search she was living in Florida. This evidence was sufficient to warrant the trial court's finding that the house had been abandoned by the appellant and to justify the conclusion that appellant lacks standing to challenge the legality of the search. Parman v. United States, 130 U.S.App.D.C. 188, 399 F.2d 559. Nor can it be held, as urged by appellant, that a finding of abandonment is foreclosed until the paid rent period has expired. Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668. Feguer v. United States, 302 F.2d 214 (8th Cir. 1962).

Defendant's witness Colin Douglas Willis was asked if he knew deceased's reputation for carrying a pistol. The witness answered, 'Yes, sir; I heard he carried a pistol.' The state objected and moved to exclude the answer. The court sustained the objection and granted the motion to exclude the answer.

A defendant who admits the killing but claims to have acted in self defense, is entitled to show that deceased was in the habit of carrying a pistol or other deadly weapon. Of course, the evidence must also show that defendant had knowledge of the habit of deceased in carrying weapons. Clinkscale v. State, 37 Ala.App. 593, 73 So.2d 244, and cases there cited. As was said in Sims v. State, 139 Ala. 74, 36 So. 138, the 'cases do not go to the extent of supporting the contention that a witness other than defendant knew this fact when such fact is not traced to defendant's knowledge.'

But even defendant's knowledge of deceased's habit of carrying weapons would not have been pertinent here. She denied the killing and testified Tommy Davidson struck the fatal blows.

Appellant moved to suppress her written confession on the ground that it was involuntary. A voir dire hearing was conducted outside the presence of the jury. A proper predicate was laid as to threats, inducements, etc. Taylor Wilkins, Sheriff of Baldwin County testified that before she made the confessory statement he advised

Page 243

the defendant of her constitutional rights and read to her a statement of her rights to have an attorney present, after which she [47 Ala.App. 112] signed a 'Waiver of Rights.' The warning read to defendant and the waiver, State's Exhibit 30, reads:

'Before we ask you any questions, you must understand your rights.

'You have the right to remain silent.

'Anything you say can and will be used against you in Court.

'You have the right to talk to a lawyer for advice before we ask you any questions and to have him with you during questioning.

'If you cannot afford a lawyer, one will be appointed for you before any questioning if you wish.

'If you decide to answer questions without a lawyer present, you will still have the right to stop answering at any time. You also have the right to stop answering at any time until you talk to a lawyer.'

WAIVER OF RIGHTS

'I have read this statement of my rights and I understand what my rights are. I am willing to make a statement and answer questions. I do not want a lawyer at this...

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16 practice notes
  • Freeman v. State, 8 Div. 200
    • United States
    • Alabama Court of Criminal Appeals
    • March 22, 1988
    ...with a co-defendant's confession cannot be held to be an unfair tactic or unlawfully coercive," citing Vander Wielen v. State, 47 Ala.App. 108, 251 So.2d 240, cert. denied, 287 Ala. 742, 251 So.2d 246 (1971); Williams v. State, 461 So.2d 834, 841 (Ala.Cr.App.1983), reversed on other grounds......
  • Smith v. State
    • United States
    • Alabama Court of Criminal Appeals
    • August 25, 2000
    ...with a codefendant's confession cannot be held to be an unfair tactic or unlawfully coercive,' citing Vander Wielen v. State, 47 Ala.App. 108, 251 So.2d 240, cert. denied, 287 Ala. 742, 251 So.2d 246 (1971)); Williams v. State, 461 So.2d 834, 841 (Ala.Cr.App.1983), reversed on other grounds......
  • Moore v. State, 3 Div. 426
    • United States
    • Alabama Court of Criminal Appeals
    • April 20, 1982
    ...coercive. Gibson v. State, 347 So.2d 576 (Ala.Cr.App.1977); Sharp v. State, 338 So.2d 518 (Ala.Cr.App.1976); Vander Wielen v. State, 47 Ala.App. 108, 251 So.2d 240, cert. denied, 287 Ala. 742, 251 So.2d 246 Where the voluntariness inquiry presents conflicting evidence, great weight must be ......
  • Logan v. State
    • United States
    • Supreme Court of Alabama
    • September 13, 1973
    ...So.2d 810(6); Goldin v. State, 271 Ala. 678, 127 So.2d 375(8); Ingram v. State, 252 Ala. 497, 42 So.2d 36(11); Vander Wielen v. State, 47 Ala.App. 108, 251 So.2d 240(5); Reed v. State, 48 Ala.App. 120, 262 So.2d 321(2). In Ingram v. State, supra, this court approved and agreed with a statem......
  • Request a trial to view additional results
16 cases
  • Freeman v. State, 8 Div. 200
    • United States
    • Alabama Court of Criminal Appeals
    • March 22, 1988
    ...with a co-defendant's confession cannot be held to be an unfair tactic or unlawfully coercive," citing Vander Wielen v. State, 47 Ala.App. 108, 251 So.2d 240, cert. denied, 287 Ala. 742, 251 So.2d 246 (1971); Williams v. State, 461 So.2d 834, 841 (Ala.Cr.App.1983), reversed on other grounds......
  • Smith v. State
    • United States
    • Alabama Court of Criminal Appeals
    • August 25, 2000
    ...with a codefendant's confession cannot be held to be an unfair tactic or unlawfully coercive,' citing Vander Wielen v. State, 47 Ala.App. 108, 251 So.2d 240, cert. denied, 287 Ala. 742, 251 So.2d 246 (1971)); Williams v. State, 461 So.2d 834, 841 (Ala.Cr.App.1983), reversed on other grounds......
  • Moore v. State, 3 Div. 426
    • United States
    • Alabama Court of Criminal Appeals
    • April 20, 1982
    ...coercive. Gibson v. State, 347 So.2d 576 (Ala.Cr.App.1977); Sharp v. State, 338 So.2d 518 (Ala.Cr.App.1976); Vander Wielen v. State, 47 Ala.App. 108, 251 So.2d 240, cert. denied, 287 Ala. 742, 251 So.2d 246 Where the voluntariness inquiry presents conflicting evidence, great weight must be ......
  • Logan v. State
    • United States
    • Supreme Court of Alabama
    • September 13, 1973
    ...So.2d 810(6); Goldin v. State, 271 Ala. 678, 127 So.2d 375(8); Ingram v. State, 252 Ala. 497, 42 So.2d 36(11); Vander Wielen v. State, 47 Ala.App. 108, 251 So.2d 240(5); Reed v. State, 48 Ala.App. 120, 262 So.2d 321(2). In Ingram v. State, supra, this court approved and agreed with a statem......
  • Request a trial to view additional results

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