Williams v. State

• Decision Date: 19 July 1949
• Docket Number: 5 Div. 268.
• Citation: 42 So.2d 500,34 Ala.App. 603
• Parties: WILLIAMS v. STATE.
• Court: Alabama Court of Appeals

42 So.2d 500

34 Ala.App. 603

WILLIAMS v. STATE.

5 Div. 268.

Alabama Court of Appeals

July 19, 1949

Rehearing Denied Aug. 15, 1949.

D. T. Ware, of Roanoke, for appellant.

A A. Carmichael, Atty. Gen., and M. Roland Nachman, Jr., Asst Atty. Gen., for the State.

HARWOOD Judge.

This appellant stands convicted of manslaughter in the first degree, after having been indicted for murder in the second degree.

The evidence tends to show that on the night of April 17, 1948 there had been a supper at a rural school house which was in the vicinity of the home occupied by appellant, his children, and his mother.

After the supper several men in attendance at the supper came to appellant's premises, apparently without any prearrangement or invitation. Among these was the deceased.

Appellant's house was close to a road used by the public, and his barn was across this road, but near to it.

Some of the evidence tends to show that some noise and disturbances developed among the group that came to appellant's home or yard, and that they were asked to leave by appellant and by his mother.

The deceased left, but returned shortly. Thereafter the evidence is in dispute as to what occurred. The State's evidence was directed toward showing that appellant was in his yard as deceased returned and that appellant shot deceased with a shotgun while deceased was in the road above mentioned.

According to appellant and his young son appellant shot deceased as he was advancing on appellant with a knife threatening to 'cut his guts out.'

This conflict of course presented a question of fact solely within the province of the jury to resolve.

Counsel for appellant insists that reversible error infects this record because of certain statements made by the Solicitor in his argument to the jury. In this connection the record shows the following:

'Mr Ware: We object to the argument of the Solicitor in which he has stated that 'This man thought he could get by with this murder because the man he lived with would get his brother-in-law lawyer to get him out of it;' the brother-in-law of the attorney was assisting in the defense. If the Court please, we object to that argument and move that the jury be instructed to ignore it.

'The Court: Gentlemen, you will ignore that part of the argument.

'Mr. Ware: Wait a minute, I didn't get through your Honor. The defendant moves for a mistrial in this case because of the unfounded and unfair argument of an overzealous solicitor venturing out about some white man defending or helping this defendant. It is prejudicial and beyond repair. This defendant cannot possibly obtain a fair and impartial trial after such argument is made to the jury and we are insisting on our motion that this case now be declared a mistrial.

'Mr. Boyd: If the Court please, that part of my argument was invited by, and was in response to, the argument of Mr. Ware, the defendant's attorney that the jury knows that a man like Mr. Warren Sewell would not be hiring a criminal to run his farm.

'The Court: Gentlemen, you will ignore that argument. That argument is not legitimate and there is no evidence whatsoever that the party assisting in the defense is a brother-in-law of the attorney in the case. Mr. Solicitor, you will not make such argument at all to the jury. Your motion is overruled.

'Mr. Ware: We want to further move that the argument be stricken from the record.

'The Court: All the Court can do is exclude it from the jury and the Court has done that. That is argument, gentlemen, and you will consider only the legitimate argument in the case. Proceed.

'Mr. Ware: We reserve it.'

In view of the court's action in the premises we are of the opinion that injury, if any, of which appellant can complain, resulting from the above statements was sufficiently eradicated. Certainly any injury remaining was so diluted that its effect can only be said to be speculative. The jury most probably weighed this exchange between opposing lawyers at its true value. Arant v. State, 232 Ala. 275, 167 So. 540.

Charge 1 being affirmative in nature was properly refused under the evidence of this case.

Charges 2 and 3 were refused without error, for in our opinion they were adequately covered by the excellent oral charge given the jury by the trial court.

A question of considerable difficulty has been presented in consideration of this cause by the court's rulings on questions propounded to defense witness R. C. Madden seeking to elicit testimony as to whether this witness saw deceased with a pocket knife at the time of, or just prior to, the shooting.

Two State witnesses, King Herren, and Leroy Joiner, testified on cross examination that they had not seen the deceased with a knife at or just prior to the shooting, though Herren said he had heard 'them' say that somebody had a knife in the yard on that night.

Bunk Pittman, a witness for the State, and father of the deceased, who arrived at the scene shortly after the shooting, testified on direct examination that he shook his son and saw he was dead, and he found no wespon, knife, or gun, on deceased.

Mr. Gladstone Kirby, Sheriff of Randolph County, and likewise a witness for the State, testified on direct examination that after his arrival at the scene he searched deceased, and the ground around for weapons, and did not find a knife or a gun.

Evidence was submitted tending to show that no one had removed anything from deceased's body prior to the arrival on the scene of the two witnesses Pittman and Kirby.

After the above evidence elicited during the presentation of the State's case the record shows the following rulings during the direct examination of defense witness R. C. Madden:

'Q. Did you see Son Pittman that night? A. Yes, sir.

'Q. Did you see him with a pocket knife that night?

'Mr. Boyd: Now, we object to that if the Court pleas as it is not shown when nor where, nor is it of res gestae.

'Q. There before this shooting, did you see a pocket knife?

'Mr. Boyd: We object again, it has not been shown when, where, nor is it part of res gestae.

'The Court: You will have to fix the time.

'Q. There that night at the same or approximately the same time the shooting took place?

'Mr. Boyd: We object on the further grounds he is leading the witness and it is his own witness.

'The Court: Sustained on the ground of leading.

'Mr. Ware: We reserve it.

'The Court: It is sustained on the ground of leading. You have your exception.

'Q. Did you see this deceased, Son Pittman, there that night just prior to the shooting, there at Williams' house, or on that path to Otis Williams' house with a pocket knife?

'Mr. Boyd: We object, if the Court please.

'The Court: Sustained.

'Mr. Ware: We reserve it.

'The Court: You have your exception.'

The correctness of the court's ruling in the above instance depends upon, whether, under the circumstances disclosed by the record, the questions to which the...