Washington v. State, 3 Div. 446

• Decision Date: 05 October 1976
• Docket Number: 3 Div. 446
• Citation: 339 So.2d 611
• Parties: Clarence WASHINGTON v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 611

339 So.2d 611

Clarence WASHINGTON v. STATE.

3 Div. 446.

Court of Criminal Appeals of Alabama.

Oct. 5, 1976.

Rehearing Denied Nov. 2, 1976.

Elno A. Smith, Jr., Montgomery, for appellant.

William J. Baxley, Atty. Gen., and Rosa G. Hamlett, Asst. Atty. Gen., for the State.

DeCARLO, Judge.

The grand jury of Montgomery County charged that Clarence Washington: '. . . unlawfully and with malice aforethought, killed Jessie Price by shooting him with a pistol. . . .' Trial was held and a jury found him guilty of murder in the second degree and fixed his punishment at ten years in the penitentiary.

Richard A. Roper was employed by the Alabama Department of Toxicology and Criminal Investigation as a toxicologist and the director of the Montgomery laboratory. After September 12, 1975, he conducted a post mortem examination of the body of the victim, Jessie Price. His examination revealed two circular penetrating wounds on the body; one located in the upper chest and the other in the right hip. Based on that examination, his conclusion was that death resulted from hemorrhage and shock associated with a gunshot wound to the chest.

On cross-examination, Dr. Roper stated that the victim was approximately six feet, two inches tall and weighed about two-hundred pounds. In Roper's opinion he was not obese and had a normal muscular development. Roper stated that while he was at the funeral home, Herman Singleton, the mortician, gave him a sample of blood from the deceased. He said the analysis of the blood indicated that ethyl alcohol was not present.

Charles Wesley Smith, a criminalist with the Alabama Department of Toxicology in Montgomery, testified that he made a firearms comparison test with the alleged murder weapon which he received from the Montgomery detective's office. He compared the bullet retrieved during the test with that found in the victim's body and it was his opinion that they were fired from the same gun.

During cross-examination, Smith stated that on October 8, 1975, he received the pistol used in the test from Detective Brannon and that the weapon had the officer's initials scratched on it.

Mattie Evans lived at 155 Phillips Street in Montgomery, Alabama, and the appellant, Clarence Washington, was her nephew. She testified that she had reared Jessie Price and that on the night in question, Price had asked her to buy some juice 'for the little girl' who lived across the street. He also asked her to buy some cigarettes and beer. At that time he gave her what she thought was a twenty-dollar bill. She placed the bill in the bottom of her pocketbook and went to the store. Upon returning, Mrs. Evans learned that Price had gone 'up the street.' She then asked Price's cousin, Roy Edwards, to take her to church and on her return, 'heard' Price across the street. Mrs. Evans called to him and was told to leave the cigarettes with her son, Albert, and that Price would get his change and beer later. Subsequently Price came to her house and while he was sitting on the front porch, she gave him the change. About that time, Price asked her to give Houston Hardy and Jesse Lige a beer. When she reached the kitchen, Price called her back to the porch and said: 'my change ain't right.' She started to explain about the cost of the items and Price said: 'no, I don't mean that . . . I mean I gave you a fifty-dollar bill instead of a twenty.' At that point a discussion concerning the money began and Price telephoned his sister, to whom he had also given money.

Mrs. Evans testified that at the close of Price's telephone conversation with his sister, he began to 'cuss and stomp.' About that time, the appellant, Clarence Washington, came into the house and he and her son, Albert, began to argue with Price. They went onto the front porch and when Albert was pushed back into the house, the appellant turned and walked off the porch. When the appellant reached the corner of the porch he came back to the front of the house and shot Price. Mrs. Evans stated that she did not see the victim with a weapon at the time and that she had just helped him to his feet when he was shot. After the second shot she stepped in front of Price and the appellant stopped shooting. According to Mrs. Evans, she had never known Price to carry a gun or a knife.

Roy Edwards, the victim's first cousin, testified that on the night in question, he saw the victim drinking beer on the front porch of the house across the street from where the Evans' house was located. He recalled that when Mattie Evans came home from church, she came over and asked Price if he wanted his money. Price told her that he would come over and get it and she went home. After Edwards saw Price go to the Evans' house, he heard some loud talking coming from the Evans' front porch. He was about fifty feet away at the time when he saw the appellant grab Price. They began pushing one another and Price went down. Edwards testified that when he went over, the appellant had Price down beating him. According to Edwards, he broke up the fight and was talking to Price when the appellant stepped up, pulled a gun from his back pocket, cocked it and shot twice. He said that Price was not moving toward the defendant and did not have any kind of weapon.

Jesse Lige lived at 148 Phillips Street, which was across from Mattie Evans' house. On the night of September 12, 1975, he was sitting on his front porch with Houston Hardy when Jessie Price came to his house. Lige recalled that Price had asked Hardy and him to go over to Mattie Evans' house. He said that after they walked in the back door, Price asked Mrs. Evans for his change and she said: 'I don't owe you no change.' Price claimed he had given Mattie Evans a fifty-dollar bill but she insisted it was a twenty-dollar bill. Lige said an argument developed and Albert Evans awoke and started arguing with Price. A fight ensued and subsequently they moved to the front porch. According to Lige, Clarence Washington, the appellant, came over and he and Albert started 'double teaming' Price on the front porch. When Albert was pulled away, the appellant and Price continued to fight but Roy Edwards came over and pulled the appellant off of Price. At that point, the appellant went around the side of the house and then came back to the front steps and started shooting.

During cross-examination, Lige stated that he was sober that night and that he did not see Price or appellant drinking. He admitted being invited over to the Evans' house to have a beer but said that Price did not drink any while he was there. Lige said he did not hear Price or the appellant 'cuss' but did hear Albert use some profanity. On further questioning, he stated that when the appellant pointed the gun at Price, Price 'put his hands up.'

On the evening of Friday, September 12th, Houston Hardy was visiting in the home of Jesse Lige and sometime after 5:00 P.M. they walked across the street to Mattie Evans' house. About the same time she came home from church and when Hardy and Lige went in the back door of the Evans' house, he heard Price and Mrs. Evans arguing about a fifty-dollar bill. After Hardy and Lige went into the front room, they saw Albert, Mattie Evans' son, shaking money in Price's face and arguing that he did not get Price's money. Hardy testified that after Price had made a telephone call to his mother, he asked Price to go outside. When they went outside the door, Washington pushed Price and then Albert got involved. According to Hardy, he pulled Albert away from Price and the appellant pushed Price over a porch chair. At that point, Price grabbed Washington and they came up from the porch floor together. When Price went down the second time, Edwards who was across the street came over and he and Mattie Evans broke up the fight. After Washington got off the side of the porch he walked around to the front steps of the house. Hardy testified that the appellant '. . . came out of his pocket with a pistol and he shot once.' Price did not move after the first shot but after the second shot, fell backwards toward the door of the house. According to Hardy, the appellant put the gun in his pocket and said he was going inside the house to telephone the police.

During cross-examination, Hardy said he did not see anybody drinking alcoholic beverages that night but said he heard Price 'cussing' when he accused Mattie Evans of taking his money.

Jack Stewart was an officer of the Montgomery Police Department and on September 12, 1975, he went to the scene of the shooting. On his arrival he observed the deceased lying on the front porch and afterwards removed a .25 caliber automatic pistol from the...