Warren v. State

• Decision Date: 07 November 1967
• Docket Number: 6 Div. 201
• Citation: 205 So.2d 916,44 Ala.App. 221
• Parties: Homer WARREN v. STATE
• Court: Alabama Court of Appeals

Page 916

205 So.2d 916

44 Ala.App. 221

Homer WARREN v. STATE

6 Div. 201.

Court of Appeals of Alabama.

Nov. 7, 1967.

Rehearing Denied Dec. 19, 1967.

Richard A. Thompson, Tuscaloosa, for appellant.

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

PRICE, Presiding Judge.

Homer Warren was tried in the Circuit Court of Tuscaloosa County, Alabama, on a charge of murder in the first degree. He was found guilty of murder in the second degree and sentenced to twelve years' imprisonment.

The killing occurred around noon on Sunday, August 15, 1965. The defendant was arrested, incarcerated, and a confession taken from him in the jail around 5:00 or 5:30 the same afternoon.

Frank Barger was the homicide victim. There were no eye witnesses.

The testimony concerning the crime and the taking of the confession is as follows:

The defendant, thirty-eight years old, with a third-grade education, was born on a farm in Mississippi, but for the past few years had been living with his mother in Chicago. In May or June of 1965, he came to the North River area of Tuscaloosa with Robert Sullivan and was staying with Abraham Sullivan, the father of Robert Sullivan. On August 15, Abraham Sullivan was in Texas and defendant was alone in the house during Abraham Sullivan's absence.

Mrs. Virginia Sullivan, Robert's wife, testified she lived a fifth of a mile from Abraham Sullivan. About 12:30 on the day in question the defendant came to her home and told her he thought he had killed somebody, but didn't know who it was, and said 'You go and see.' She told him to wait until her husband came home and they would go together. She had heard a shot ten minutes before defendant came to her house. Defendant talked 'crazy'; he was staggering; there were fresh scratches or bruises on both sides of his face, and blood was coming from one of the bruises. Her husband arrived in about fifteen minutes, and, after she told him what defendant had said to her, they drove to Abraham Sullivan's house.

Robert Sullivan testified that, when he returned home and his wife told him what defendant had said, they went to Abraham Sullivan's house, and he went in the house and found the body of Frank Barger on the bed. Defendant was in the yard, stooping over a bucket of tar, chewing on tar. He 'looked wild', was shaking, he was 'wallowing his eyes back in his head', and he resembled the way other people looked that he had seen who were suffering from delirium tremens. Predicates were laid for the admission of defendant's statements to the witness as he entered the house and when he came out of the house. As he went in the house witness asked where Frank was and defendant said 'In there on the bed.' As he came out of the house, he asked defendant why he shot Barger and defendant said he didn't know. Later he heard defendant tell Whitfield Cunningham that Frank was trying to kill him. Defendant never used the term 'I killed Frank Barger.' Two weeks later, when he saw defendant in jail, defendant still looked dazed and a little bit crazy.

Gene Boswell, employed as a criminal investigator in the sheriff's office, testified he arrived at Abraham Sullivan's house about 2:00 or 2:30 and saw deceased's body on the bed; that he talked with the defendant in the jail about 5:00 or 5:30 the same afternoon. On direct examination he testified defendant was drinking. 'It was about medium. * * * No, sir, I wouldn't say he was drunk but he had been drinking.' He noticed nothing unusual about defendant's demeanor and appearance except 'nervousness and appearance of being intoxicated.' His speech was coherent. He appeared in control of his faculties and aware of what he was saying. On cross examination the witness stated the defendant was under the influence of alcohol, and, if defendant had been driving an automobile under the condition he described, witness would have arrested him for driving while intoxicated. This question was then asked: 'So then he didn't have full control of his faculties if he was under the influence of alcohol.' The witness answered: 'I wouldn't think so, * * * you could tell he was under the influence of alcohol.' On redirect examination he stated defendant 'was not drunk. He was intoxicated. * * * You could understand him.'

At this time and place defendant made a statement to him. Boswell identified himself as an officer ans asked defendant if he would like to make a statement about it, and he said he would. 'I asked him if he did it and he said yes, and so from that I started.'

The witness testified he did not 'use coercion', did not offer him a reward or tell him it would be better for him to make a statement; that he 'informed him of his constitutional rights, that he didn't have to make a statement, that he was entitled to an attorney, and anything that he would say could be used against him and that it would be better if he wanted to get him an attorney and he said no, he would go ahead and tell me about it.'

The witness was then examined on voir dire. He stated that defendant was intoxicated that there was no doubt about his being under the influence of alcohol. He was in the room with defendant thirty to forty-five minutes. He reduced the statement to writing, but did not read it to defendant. Defendant looked at it for a short time and then signed it.

The confession, introduced in evidence over defendant's objection, is substantially as follows: Defendant and deceased, Frank Barger, were at Abraham Sullivan's house where defendant was staying; that Frank Barger had taken a 410-gauge shotgun belonging to Abraham Sullivan and defendant told him to put it back, but deceased said he wouldn't to it and if defendant came back in the house deceased would blow defendant's head off; that defendant then got a twelve-gauge shotgun, put a shell in it, and went in the bedroom where Barger was and asked if he was going to put the shotgun back. The deceased said he was not and that he would kill defendant if he didn't get out of there, and defendant shot him; that after shooting him he tried to help him but saw that he would not, and he went to the creek and threw the gun in; that he then went to Robert Sullivan's house and told him what had happened.

Deputy Sheriff Roy Phillips, called as a witness for defendant, testified defendant was drunk when he booked him at the jail, between 3:30 and 4:00 o'clock the afternoon of the homicide.

The defendant was indicted for the murder of Frank Barger on September 1, 1965. Defense counsel was appointed by the court on September 9, 1965, and defendant was arraigned and pleaded not guilty and not guilty by reason of insanity on December 7, 1965.

On September 9, 1965, on application of defendant's court-appointed attorney, the trial judge directed the Superintendent of the Alabama State Hospitals to convene a lunacy commission under the provisions of Title 15 Sec. 425, Code 1940. The report of the commission, dated October 20, 1965, recites:

'After full study and a long period of observation, it is the opinion of each of us separately, and our opinion jointly and collectively, that the said Homer Warren, a single man--age thirty-eight, has for a number of years been heavily addicted to the use of alcohol, and information obtained from other institutions indicates that he has been hospitalized several times for Acute Brain Syndrome Due to Alcohol (delirium tremens.) Since admission in Bryce Hospital there has been no evidence of mental disorder or an insane state, and...