Wheat v. State

• Decision Date: 23 May 1967
• Docket Number: 8 Div. 997
• Citation: 202 So.2d 65,44 Ala.App. 45
• Parties: Jack Farrell WHEAT v. STATE.
• Court: Alabama Court of Appeals

Page 65

202 So.2d 65

44 Ala.App. 45

Jack Farrell WHEAT v. STATE.

8 Div. 997.

Court of Appeals of Alabama.

May 23, 1967.

Rehearing Denied June 20, 1967.

Beddow, Embry & Beddow, Birmingham, and Smith, Johnston & Walker, Huntsville, for appellant.

MacDonald Gallion, Atty. Gen., and John C. Tyson, III, Asst. Atty. Gen., for the State.

JOHNSON, Judge.

Appellant was indicted by the Grand Jury of Madison County, Alabama, on November 16, 1962, for the offense of murder in the first degree. Upon a plea of not guilty, a jury found appellant guilty of murder in the second degree and sentenced him to twenty years imprisonment in the State penitentiary as punishment therefor. Upon the denial of a motion for new trial and from this judgment, appellant makes this appeal.

The tendency of the evidence was as follows:

Edwin Franklin Womack, Jr., the State's first witness, testified that he was a student at Georgia Tech on a co-operative program, attending school for three months and working at Redstone Arsenal for three months, alternately. He stated that he first knew appellant when he worked in a laboratory with him at Redstone Arsenal in March, 1962, and that he worked with him again in October, 1962; that on October 20 he went to appellant's home at 9:00 or 9:30 A.M.; that neither of them were working on that day; and that he then took appellant to a downtown store and to Redstone Trailer Park where they stayed until about 1:30 P.M. putting up a television antenna and working on a washing machine. While they were there, appellant's wife came by and told them she was going to Clanton to visit her father and appellant stated that he was glad she was going. The witness stated that appellant had been drinking beer, both at his home and at the trailer park; that at 1:30 P.M. they left the trailer park and stopped at a store; and that he then took appellant home and left him.

Mr Womack stated that he next saw the appellant at appellant's home at about 1:00 A.M. on the morning of October 21 where he had come to spend the night with appellant because he had said he didn't want to stay alone. Appellant opened the front door to let him in and appellant was clad in a tee shirt, a pair of slacks and a pair of socks. There was a woman there who was clad in a pajama top, panty girdle, stockings rolled below the knees and boots. She asked appellant who Womack was and was told that he was 'a friend'. Womack then had a drink with appellant and the woman.

Appellant and the woman discussed leaving the house but finally decided not to, during which time the woman and appellant continued to drink. The woman was using obscene language and the appellant was using 'similar language, but to a lesser degree'. The woman attempted to make a telephone call but found that the phone was dead. Womack attempted to make the woman dress so that they could take her home. Appellant went into his bedroom and locked the door and the woman was 'rambling about' the house. Womack knocked on the door and, after several attempts, was admitted by appellant where he observed a gun and a box of shells on a chest of drawers. Womack said that he and appellant went back into the den and that he continued to try to get appellant and the woman to leave the house. Appellant then went into the 'store room' for a few minutes, then the witness found him sitting on the steps sobbing and saying that he 'didn't have any reason to live.'

At one point appellant fell across the hood of the car, after which Womack got them both into the car. The witness said that he observed no difficulties between the two but that at one point the woman struck at him (the witness) with a high heeled shoe. They then left the house in appellant's car with Womack driving, the appellant sitting in the front seat with him and the woman seated in the center of the back seat. Womack stated that in his opinion they were both intoxicated and that the woman asked to be taken to Meridian Street but when they reached this street, she told the witness that he should have turned to the left but it did not matter as she wanted to go to a 'Crystal downtown'. As they were driving toward town, the woman was using profane language and speaking in a very loud voice. They ran over a railroad track and she said, 'Take it easy. Take it easy. Don't bounce me like that.'

Appellant then turned around and Womack observed that he had a gun in his hand. The woman continued to talk loudly and profanely and the appellant pointed the gun toward the back of the car and said, 'Shut up. I can't take it. I can't stand it anymore.' Womack told the appellant to put the gun down and tried to calm both of them but the gun was fired. After this, the woman said nothing but slumped over in the back seat. The appellant held the gun for a few seconds and then laid it down on the seat and it was then picked up by Womack and put between the seat and the door of the car, on the driver's side.

The witness then asked the appellant what they were going to do now and appellant said to just drive and he drove as he was directed. The witness stated that in his best judgment the shooting occurred at about 2:30 A.M. and that he did not observe that the deceased or appellant hit at each other at the time of the shooting.

Womack stated that he and appellant drove to Ardmore, Tennessee, and turned down a dirt road where appellant directed him to stop the car and appellant then removed the woman from the car and placed her about six or eight feet from the side of the car. Appellant then reentered the car and instructed the witness to drive to Huntsville and, while en route, appellant threw some objects from the car. They then went directly to appellant's home and the witness left the appellant.

The witness testified that the next morning he received a telephone call from appellant, in response to which he went to appellant's home and stayed about half an hour. The appellant asked him where the pistol was and Womack showed him that it was in the same position in appellant's car which it was the night before, between the front seat and the door on the driver's side of the car. Appellant then said that they had to 'get rid of it' and instructed Womack to drive him south on Memorial Parkway. As they drove over Whitesburg Bridge appellant threw the pistol and the box of shells out of the car. They then returned to appellant's home and Womack stayed with him until about 2:00 P.M. and then went home for some sleep.

At 7:00 P.M. Womack was called by appellant's wife who asked him to come back to appellant's house. He did so and then decided to go to a neighbor's house in an effort to 'get some more liquor to get him knocked out so we could manage him.' Womack said that no liquor was available but that he obtained two sleeping pills which he gave appellant, after which they got him into the car and drove him to Birmingham. The witness and appellant's wife then returned to Huntsville.

Next, appellant introduced twenty witnesses who testified that his general character was good.

Dr. J. U. Speer, a qualified medical practitioner of Pulaski, Tennessee, testified that on October 21, 1962, he examined the deceased and found a wound caused by a firearm in the upper part of the left arm and the upper part of the left chest. He stated that he made an x-ray to determine the location of the bullet and found it to be located in her spine; he then opened the chest to try to locate and remove the bullet but before this was completed he was notified that the district attorney wanted him to perform a complete autopsy. He testified that he then made an incision the entire length of the chest and found that there was blood in the pleural cavity and he traced the line which the bullet took, indicating that it went downward and backward to the spine. He stated that the left lung showed the track of the bullet through it and in his opinion her death was a result of the gunshot wound.

On cross-examination, Dr. Speer stated that he did not examine the clothing, only the body, and that the bullet entered the upper left arm and then came out of the arm and entered the chest. He said that there was a black discoloration which he interpreted to be powder burns; that the bullet entered between the ribs through the left lung and lodged in the spine about six inches from the point where it entered the body. He said that there were no other blows or wounds on the body.

Dr. William T. McVay, StateToxicologist, qualified as a firearms expert, testified that on October 23, 1962, he received a bullet from the Tennessee F.B.I. and on November 4, 1962, he received a pistol which was found that day by a skin diver. It was still in its holster and was found twenty feet down stream from the third pier of the Whitesburg Bridge. He made a ballistics test and determined that the bullet was fired through the pistol.

Appellant testified that he first saw Miss Honavich on Saturday night, October 20, 1962, at the American Legion Post in Huntsville which he visited at 10:30 or 10:45 P.M.; that there he had a beer and chatted with a friend, Bill Keller; and that at about 11:30 P.M. appellant ordered a drink and when the bartender announced that the bar would be closed in ten minutes, he purchased a pint of whiskey and paid for it with a $20.00 bill which he peeled from a roll containing $70.00 to $80.00. He stated that when the bartender returned with his change, Miss Honavich was seated at his left side at the bar and asked appellant to buy her a drink but the manager instructed the bartender not to serve her, and that she appeared to be intoxicated. Appellant testified that he then took his pint of whiskey and put it in his front left pocket and left the bar with a group who were also leaving; that he walked to his car and as he opened the lefthand door, the woman opened the righthand door and got in, informing him that he was taking her home. Appellant stated that when they arrived...