Weaver v. State

• Decision Date: 24 November 1981
• Docket Number: 1 Div. 210
• Citation: 407 So.2d 568
• Parties: Danny Harold WEAVER v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 568

407 So.2d 568

Danny Harold WEAVER v. STATE.

1 Div. 210.

Court of Criminal Appeals of Alabama.

Nov. 24, 1981.

Lee B. Williams, Grove Hill, for appellant.

Charles A. Graddick, Atty. Gen. and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.

JOSEPH J. MULLINS, Retired Circuit Judge.

The Grand Jury of Washington County returned an indictment for murder against the appellant, Danny Harold Weaver, and he entered a plea of not guilty, and was convicted of manslaughter in the first degree. The appellant was duly sentenced to five years imprisonment, and he gave notice of appeal to this Court. Appellant filed a motion for a new trial and same was duly denied by the trial court.

The appellant was at all proceedings in the trial court represented by counsel of his choice, and is so represented in this Court. This appeal was submitted to this Court on briefs.

The appellant argues in his brief that the trial court erred to the prejudice of the appellant by: First, denying defendant's motion for a directed verdict; second, refusing appellant's written charge number 9; third, sustaining state's objections to questions about threats made by deceased against the appellant and Jurlean Weaver; fourth, restricting appellant's right of cross-examination of state's witnesses; fifth, allowing a pathologist to give his opinion as to cause of death of the deceased; sixth, allowing state to introduce evidence by other prosecution witnesses that tended to impeach, or discredit, the testimony of state's witness, Jurlean Weaver; seventh, overruling appellant's motion for a new trial.

The ground for the first prejudicial error complained of by the appellant in his brief is that the indictment in this cause charges that the appellant killed Lonnie Dean Weaver by shooting him with a .25 caliber automatic rifle, while the undisputed evidence proves that the appellant killed the deceased by shooting him with a .25 caliber automatic pistol. The appellant contends that there is a fatal variance between the allegation of the indictment and the proof in support thereof, and that the trial court erred to his prejudice in overruling his motion for a directed verdict. A .25 caliber automatic rifle, and a .25 caliber automatic pistol are the same in character. They both inflict the same character of wound. If the weapon described in the indictment, and the weapon proven are of the same nature and character, and inflict the same nature and character of the wound proven inflicted, there is no fatal variance in the allegation of the indictment and the proof. We hold that the trial court did not err when it overruled the appellant's motion for a directed verdict due to a fatal variance between the allegation of the indictment and the proof. Hull v. State, 79 Ala. 32; Turner v. State, 97 Ala. 57, 12 So. 54; Taylor v. State, 148 Ala. 565, 42 So. 997; Matthews v. State, 51 Ala.App. 417, 286 So.2d 91.

The appellant's second contention in his brief is that the trial court erred to his prejudice by refusing to give appellant's requested, written charge number 9. Charge number 9 reads, as follows:

"The Court charges the jury that it is the settled law of this State that he who invokes self defense in protection of a third person, is placed in the shoes of the person whom he seeks to protect, and if the jury is reasonably satisfied from all the evidence in this case that at the time the Defendant fired the fatal shots Jewel Weaver was in imminent danger of losing her life or suffering grievous bodily harm at the hands of the deceased, he should be acquitted, unless the jury is satisfied beyond all reasonable doubt that Jewel Weaver entered the fight willingly or was at fault in bringing on the difficulty."

The court's general charge to the jury fully covered the same rules of law contained in appellant's requested, written charge number 9, and was substantially, fairly, and clearly stated to the jury in the court's general charge. We, therefore, hold that the trial judge did not err by refusing appellant's requested, written charge number 9. Code of Alabama, 1975, Sec. 12-16-13; Brown v. State, Ala.Cr.App., 393 So.2d 513; Struggs v. State, Ala.Cr.App., 372 So.2d 49; Certiorari Denied, Ala., 372 So.2d 55; Lowman v. State, Ala.Cr.App., 400 So.2d 430; Certiorari Denied, Ala., 400 So.2d 434. We do not comment as to whether refused written charge number 9 should or should not have been refused by the trial court for other reasons.

Appellant's third contention in his brief is that the trial court erred to his prejudice by sustaining state's objections to questions about threats made by the deceased against the appellant and Jurlean Weaver when the appellant had asserted the defense of self-defense of Jurlean Weaver and appellant. During the trial there was undisputed evidence introduced, without objection by the appellant, and before the jury, of numerous threats made by the deceased, prior to the time of the shooting, directed at deceased's former wife, Jurlean Weaver, and the appellant, Danny Weaver, such as: "The next time I lay my eyes on you and Danny Harold (the appellant) I'm going to kill you both" and, "you and Danny Harold or me one is going to hell tonight. I have come here to kill you all and might as well get it over with tonight," and again in December, 1978, deceased said to appellant, "It will be two weeks before (the deceased) would kill the appellant and Jurlean," and again some three weeks before the shooting the deceased told Coma Orso and Gene Sullivan that, Deceased "was prepared to and was going to kill both the appellant and Jurlean, and again deceased told Frankie Weaver that he was going to kill all of us, (meaning appellant and Jurlean) and drown the unborn baby." All of these threats were made before, and were all communicated to the appellant before the shooting, and evidence of such threats was before the jury at the time the court sustained state's objections complained of by the appellant with reference to threats directed at the appellant. If the trial court erred by sustaining state's objection to appellant's question about a threat directed against the appellant and Jurlean Weaver, still no reversible error was made, because it was harmless error under the rule that an error in excluding evidence of a certain fact is harmless where that fact is established by other undisputed evidence. In this case, after reviewing the entire record, the fact that the deceased had threatened to take the life of the appellant, and of the person he claimed to be defending, was established by other evidence which was undisputed. Rules of Appellate Procedure, Rule 45; McLemore v. Alabama Power Company, 289 Ala. 643, 270 So.2d 657; Hayes v. State, Ala.Cr.App., 395 So.2d 127; Certiorari Denied, 395 So.2d 150; Bush v. State, 282 Ala. 134, 209 So.2d 416; Thomas v. State, 41 Ala.App. 19, 122 So.2d 731.

The appellant's fourth contention in his brief is that the trial court unduly restricted his right of cross-examination of two of state's witnesses. The range and extent of cross-examination of a witness is a matter within the sound discretion of the trial...