Ward v. State

• Decision Date: 06 December 1966
• Docket Number: 6 Div. 99
• Citation: 206 So.2d 897,44 Ala.App. 229
• Parties: Gene WARD v. STATE.
• Court: Alabama Court of Appeals

Page 897

206 So.2d 897

44 Ala.App. 229

Gene WARD v. STATE.

6 Div. 99.

Court of Appeals of Alabama.

Dec. 6, 1966.

Rehearing Denied March 28, 1967.

Rogers, Howard, Redden & Mills, Birmingham, for appellant.

Richmond M. Flowers, Atty. Gen., and John C. Tyson, III, Asst. Atty. Gen., for the State.

CATES, Judge.

This appeal was submitted May 5, 1966, on written argument. ¹

In a true bill filed June 5, 1964, the Grand Jury of Jefferson County (Birmingham Division) indicted Ward for the first degree murder of Harry S. Trent.

January 16, 1965, a petty jury, after a trial begun January 11, found Ward guilty of second degree murder and fixed his punishment at the minimum prescribed, ten years in the penitentiary. Ward appeals from judgment entered on the basis of this verdict and from a judgment of October 29, 1965, overruling his motion for new trial.

The transcript of the evidence encompassing passing 530 pages of 16 10 1/2 transcript paper was filed in the circuit clerk's office December 27, 1965, and the record itself, another 64 pages embracing the pleadings and minute entries, was certified February 8, 1966, and came here February 10, 1966.

I. The Evidence

May 14, 1964, appellant's wife was staying at least some nights with her brother's family, apart from Ward. About 9:30 or 10:00 P.M. Ward went to the apartment where Mrs. Ward stayed. Ward, on being told by Aaron Slayton, the wife's brother, that she was out, said he was going to kill her.

Slayton phoned the police. In a few minutes he heard several shots fired. He again called the police.

Looking out his front door Slayton saw Ward by 'a car backed off to the curb over there,' standing on the side opposite the driver.

Birmingham police officers, C. W. Hanks and K. S. Zassoda, were patrolling in the Birmingham Southern-Bush Hills section. About 10:45 P.M. they received a call to go to 2102 Tenth Place West, Slayton's address.

As they drove up Ward appeared. He gave Hanks a .45 automatic pistol.

According to Zassoda's testimony the two came to a place where Zassoda saw 'a couple of vehicles in front of us.' Then:

'Q After the car stopped, did you get out?

'A Yes, sir.

'Q Did Officer Hanks get out?

'A Yes, sir.

'Q Did you get out of the vehicle on the same or opposite side of the automobile?

'A Opposite side.

'Q When you got out, did you see anyone?

'A After I got out of the atomobile, I saw an officer coming towards us.

'Q In your judgment, how far was the officer from you when you saw him?

'A Maybe five or ten feet from the car.

'MR. ROGERS: From your car?

'A From the police car, yes, sir.

'Q You later found out the name of this officer?

'A Yes, sir. He identified himself.

'Q And was that person Officer Ward?

'A Yes, sir.

'Q Now, did Officer Ward--which side of the car you were in did he approach?

'A He approached the driver's side. I was on the right side.

'Q What did you do as he approached the driver's side?

'A I got out and walked towards the front of the car, and he identified himself to us.

'Q Was he standing in front of the car when he identified himself?

'A Yes, sir.

'Q Where was Officer Hanks at that time?

'A Standing by his door.

'Q Did you have a conversation with Mr. Ward there at that time and place?

'A Officer Ward made a statement to us there. He said, I' am Officer Ward, of the Homewood Police Department,' and he said, 'I just shot and killed a man.' And he pointed towards a Ford automobile, and he said, 'I shot him seven times.'

'Q Did he say anything with reference to any weapon which he might have had?

'A At this time he said, 'I guess you want this,' and he took his.45 Automatic and handed it to Officer Hanks, and Officer Hanks put it in his pocket, and we went over to the car.'

The prosecution, after extensive predicatory examination under the totality test, ² Ward told Zassoda that he had been waiting for his wife; he had parked his car so as to force 'the oncoming car that came in there would have to back out to get out.'

Ward pointed out the approximate place where he shot Trent. Mrs. Ward had been in the car with Trent.

Ward told Zassoda:

'He said after the Ford automobile came up into the area he heard some screaming coming from the car, and the door opened, and his wife came running by where his car was, and he walked up to the car.'

Hanks gave the gun to Sgt. McBridge.

Mr. Charles Pierce, a detective for the City of Birmingham, went to the Slayton address. There Sgt. McBride handed him a .45 automatic.

Pierce also found in Trent's car three spent hulls and a bullet which had lodged in the left front door. He gave these and the gun to Robert B. Johnson.

Johnson, a State toxicologist, without objection, testified that he fired a test bullet through the gun and under a microscope compared its striations and those of the bullet given him by Pierce. He testified that the result demonstrated that the 'evidence' bullet was fired from the automatic. (R. 186.)

Pierce also found in Trent's car a pint bottle partly filled with vodka and two paper cups. One of the cups was empty, dry and did not have an odor. The other, found to the right of Trent's body, was between one-fourth and one-half full of vodka and some mixer.

The only statement which Ward gave in Pierce's hearing at the scene related to Ward's arranging for his son, Joe Ward, to take Ward's car. Later at the Birmingham City Hall in Pierce's office, Pierce told Ward 'in substance,' that he did not have to make a statement at that time if he didn't want to. Pierce did not mention a lawyer.

Pierce's interrogation continued as follows:

'Q What statement, if any, did Mr. Ward make to you at that time?

'A I asked Mr. Ward what his name was, and he told me, and I asked him how old he was, and he told me he was forty, and I asked him his address, and he gave me that.

'I then told him that he was charged with the murder of Mr. Harry Trent, and asked him if he wanted to make any statement in regard to this homicide, or words to that effect, and he said he didn't--that he would make a statement, and then I further told him that he realized that any statement he gave me could be used either for or against him in court, and he then said that He would rather not make any statement until he talked to Mr. Rogers (Defense counsel).

'Q And you attempted to take no further statement from him at that time?

'A I then asked him if Mrs. Esther Ward was his wife, and he said she was, and I asked him if he had any children, and he said he did, and I made no further effort to take any statement from him.' (Italics and bracketed matter added.)

Joe Ward, appellant's son, testified that, based on a number of incidents which he enumerated, his father was insane on May 14, 1964. These incidents consisted of crying spells, protesting when Mrs. Ward worked, when she got phone calls, ripping the phone cord from the wall, refusing to go to a daughter's wedding, shooting through a bed, putting a drinking glass to his stomach and falling on it, painting his boat 'practically' every time after he used it, and several other episodes.

After the shooting, Ward went for three weeks into University Hospital in Birmingham. From there he went to Bryce Hospital in Tuscaloosa, staying there 'close to three months.' (R. 209.)

The son testified that on the night of May 14 he saw his father outside the Slayton apartment. Ward did not appear to recognize his son nor did he respond in any way to him as Joe tried to talk to him.

This witness further related he saw his father later walking toward a moving car:

'A I saw him walking towards the car, and I started screaming, telling them to back up.

'Q You started screaming, telling them to back up?

'A Yes, but the car kept coming right on.

'Q Did it hit your father?

'A He was standing right in front, by the side of the car. The car knocked him down.

'Q What happened then?

'A The car seemed like it immediately backed up.

'Q Joe, tell us, in your best judgment--can you see that from here (indicating)?

'A Yes.

'Q This little mark (indicating) indicates where the car came to rest. You know where that is, don't you?

'A Yes.

'Q Where it stopped?

'A Yes.

'Q This is your uncle's appartment, here (indicating), where the red mark is.

'Now, where, in this distance between the apartment and where the car came to rest, was it that Mr. Trent started backing the car up?

'A About the middle of the distance.

'Q About halfway?

'A Yes.

'Q About halfway?

'A Yes.

'Q All right. Did you see your father get up, or what did he do?

'A The car had backed up then, when I was still going towards the car.

'Q You were going towards the car?

'A Yes.

'Q Were you running, or walking?

'A I guess I was running.

'Q You don't know? What did you do? Did you go to the car?

'A I went to the car and got my mother out of the car.

'Q You got your mother out of the car?

'A Yes.

'Q Did you open the door, or did she open the door, or do you know?

'A I don't know.

'Q What did you do then?

'A Well, I got her out of the car and ran down the street.

'Q Did you go back the way the car had come, or how?

'A I can't say positively, but I am almost sure I went the way the car came and around to the other apartments.

'Q On the far side?

'A Yes.

'Q Did you see the shooting?

'A No.

'Q Did you hear it?

'A Yes.'

Loyal Perry, who had married a sister of Mrs. Ward, testified for the defense. On the night of concern, he had seen Mrs. Ward get into a light colored Ford. He had followed the car, got the tag number, and phoned this information to Ward.

Bobbie Jean Bowman, a daughter of appellant, testified that on the day of her wedding in March, 1963, her father locked himself in his room for the day. (R. 395.) She also told some of the same incidents which her brother, Joe Ward, had related.

In the Spring of 1964, she lived in Cocoa Beach, Florida. Appellant made numerous phone calls to her:

'He would always be crying when he called, and he would always say he didn't know how much more he could take from my ...