Wilhite v. State, 6 Div. 218

• Decision Date: 23 April 1985
• Docket Number: 6 Div. 218
• Citation: 485 So.2d 777
• Parties: Holland WILHITE v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 777

485 So.2d 777

Holland WILHITE v. STATE.

6 Div. 218.

Court of Criminal Appeals of Alabama.

April 23, 1985.

Rehearing Denied July 2, 1985.

Robert T. Wilson, Jr., Jasper, for appellant.

Charles A. Graddick, Atty. Gen., and Rivard Melson, Asst. Atty. Gen., for appellee.

LEIGH M. CLARK, Retired Circuit Judge.

This is an appeal from a judgment of conviction and sentence on a trial by a jury under an indictment that charged in pertinent part as follows:

"Holland Wilhite, ..., did, with intent to cause serious physical injury to another person, cause serious physical injury to Rick Schultz, by hitting him with a night stick, in violation of Title 13A-6-21 of the Code of Alabama...."

Section 13A-6-21, entitled "Assault in the Second Degree", provides in pertinent part:

"(a) A person commits the crime of assault in the second degree if:

"(1) With intent to cause physical injury to another person, he causes serious physical injury to any person;

"(b) Assault in the second degree is a Class C felony, which by § 13A-5-6(a)(3) is punishable by imprisonment for not more than 10 years or less than 1 year and 1 day."

The court sentenced defendant (appellant) to imprisonment for eight years.

I.

By the first issue presented in brief of counsel for appellant, he contends that "the trial court erred by not granting" timely made motions "based on insufficiency of the State's evidence." The following is correctly stated in appellant's brief:

"The State's case was based primarily on the testimony of Ricky Schultz, the Police Officer who was involved in the incident and Luke B. Wade, an unbiased witness who observed the incident."

Officer Schultz and Mr. Wade were the only eyewitnesses who testified as to the incident. Both were called as witnesses for the State. When the State rested its case, lengthy discussions were had among counsel for the respective parties and the trial judge in which it was strongly contended by defendant's counsel that defendant was entitled to a judgment of acquittal. After being assured by the trial judge that he would not grant defendant's motion for a judgment of acquittal, defendant's counsel announced, "The defense rests, Your Honor."

Officer Ricky Schultz testified that on April 24, 1982, he was working as Chief of Police for the town of Sipsey, that he had heard that there "had been fighting over there that day" at a residence, that he drove by there a couple of times that afternoon and while driving by "the third time" the following occurred:

"A. Yes, sir, I was flagged down.

"Q. Who flagged you down?

"A. Eddie Gann.

"Q. Where, if anywhere, did you pull over?

"A. I stopped directly in front of the house.

"Q. Did you pull off the street or were you on the street?

"A. I was on the street.

"Q. What happened after you pulled off?

"A. Eddie Gann walked up to the driver window of my car.

"Q. What happened at that time?

"A. He asked me if we were going to condemn the Harton residence [Referring apparently to the residence in front of which the automobile was stopped.]

"Q. What, if anything, did you say?

"A. I told him that it had been discussed.

"Q. What conversation ensued at that time?

"A. He asked me if we were going to condemn the Harton residence that summer. I said it had been discussed. And, he said, 'Well, all we'll have to do is rebuild the back room in the house.' I said, 'No, Eddie, first you will have to get some water and electricity back to the house.'

"Q. What happened at that time?

"A. Mr. Wilhite walked up from the rear of the vehicle.

"Q. And, what if anything, was he doing?

"A. He walked up to the rear of the vehicle and spoke to me and asked me, 'Do you remember when you maced me for no reason?'

"Q. What, if anything, did you say?

"A. I said, 'Holland, I remember macing you but I had a reason.'

"Q. Did he have anything in his hand at that time?

"A. Yes, sir.

"Q. What, if anything, did he have?

"A. A beer.

"Q. Was he on the street?

"A. Yes, sir.

"Q. What occurred next?

"A. He told me the best thing I could do was to get my ass out of there because he was in a bad mood.

"Q. And, what, if anything, did you say?

"A. I turned slightly in my seat and told him the best thing he could do was to get off the street with that beer in his hand.

"Q. Where was Eddie Gann at this time?

"A. Standing at the front part of my driver's door.

"Q. Did you see anyone else there?

"A. On the street with us?

"Q. Yeah, either on the street or somewhere else?

"A. Yes, sir, there were three or four subjects at the front of the house.

"....

"Q. Now, after you told the defendant to get off the street with his beer, what if anything, did he say?

"A. He said, 'Why don't you get out of the God damn car and make me.'

"Q. What did you do then?

"A. I opened the car door and stood up and as I stood up he struck me.

"Q. When you stood up out of the car, where was he?

"A. About where the passenger door would be on the left side of the vehicle.

"Q. So, he was behind you?

"A. To my left, yes, sir.

"Q. Behind you and to your left?

"A. Yes, sir.

"Q. Where, if anywhere, did he strike you?

"A. Up side of the face.

"Q. What, if anything, did he strike you with?

"A. His fist.

"Q. What did you do then?

"A. I struck him across the shoulder, the left shoulder with my night stick.

"....

"Q. What happened next?

"A. He took about a half step backwards and then threw the beer can at me.

"Q. And, what occurred next?

"A. I ducked to keep from being struck by the beer can and when I did that he tackled me around the waist.

"Q. Will you tell the ladies and gentlemen of the jury what happened after he tackled you around the waist, to the best of your ability?

"A. He tackled me around the waist and we spun along side the car to the rear of the vehicle wrestling, tripped and fell to the ground. When I hit the ground Holland grabbed my holster and my pistol with both hands trying to pull it free. I released my night stick and put my hand on the top of his hand to keep him from getting it out. I told him, 'Holland, let go of my gun.' He said, 'I've got more of the God damn thing than you do.' Well, I pried his fingers back, started prying his fingers back from my holster and when I did he released it and jumped back and I jumped to my feet, pulled my gun, and said, 'All right, Holland, you're under arrest.' He had his hands in the air. I told him, 'Holland, get on the ground.' He laid down on the ground face first spread out. I walked toward the side of him and reached back for my handcuffs. Well, my handcuffs were gone so I looked around to where we had been wrestling on the ground and my handcuffs were laying there on the ground. By the time I looked to where my handcuffs were and back Holland was coming up between my legs. I struck him on top of the head with the butt of my pistol but it had no effect whatsoever. He came up, tripped me and I fell to the ground again. He grabbed my gun and started trying to turn it in my direction toward me. I got my hands on top of his and pushed the gun away from me and spread his fingers off the end of the barrel. When his hands came free, he picked up the night stick and struck me across the forehead. He backed up a couple of steps and I was half sitting and half kneeling. I said, 'Hold it right there.' He was turned sideways like he was going away from me. When I said, 'Holland, hold it right there,' he turned back toward me. I had my gun on him pointed at him and I said, 'Hold it right there Holland.' He started toward me and I fired.

"Q. Let me ask you, where were you when you fired?

"A. On the ground in the street.

"Q. What position were you in on the ground?

"A. Sitting or half sitting and half kneeling.

"Q. At the time you fired, how far was Holland Wilhite from you?

"A. Five or six feet, maybe.

"Q. What, if anything, did he have in his hand?

"A. He had the night stick.

"Q. How did he have the night stick?

"A. In his hand.

"Q. In what position was it in his hand?

"A. In a carrying position.

"Q. Now, did these events take place in Walker County?

"A. Yes, sir."

The only premise in appellant's brief for his contention that he was entitled to a judgment of acquittal is to the effect that, under the undisputed evidence in the case, defendant was acting in self-defense. There are set forth in appellant's brief some instances of conflict between the testimony of Officer Schultz and the testimony of Mr. Wade in their testimony as to the details of what occurred. Appellant argues therefrom "sufficient evidence was not brought forth by the State to prove beyond a reasonable doubt and to a moral certainty that the Appellant was not acting in self-defense." We agree with the proposition relied upon by appellant that in a case, such as this, in which defendant raised the issue of self-defense and the evidence as to such issue is evenly balanced, the jury should acquit, and we follow what was held on the point by any of the authorities cited by appellant, including particularly Lester v. State, 40 Ala.Ct.App. 503, 121 So.2d 107 (1959), cert. denied, 270 Ala. 631, 121 So.2d 110 (1960), and specifically the following statement therein of Justice Coleman at 121 So.2d 112:

"A plea of self-defense in a criminal case is not an affirmative defense of confession and avoidance on which the defendant has the burden of proof as he does on such a plea in a civil case. Because he who asserts must prove, the party who takes the affirmative of an issue has the burden of proof. On trial of an issue of fact, if the evidence is evenly balanced, the party on whom the burden of proof rests must lose...."

Nevertheless, we cannot agree with appellant's deduction, from the principle stated, that it is for the trial court to determine on a jury trial whether the evidence is evenly balanced. Such an erroneous deduction is contrary to the principle that the credibility of witnesses is for the trier of facts, that any conflict between witnesses...