Willingham v. State
| Decision Date | 01 May 1973 |
| Docket Number | 8 Div. 283 |
| Citation | 279 So.2d 534,50 Ala.App. 363 |
| Parties | , 71 A.L.R.3d 1257 Carl E. WILLINGHAM. v. STATE. |
| Court | Alabama Court of Criminal Appeals |
William H. Rogers, Moulton, for appellant.
William J. Baxley, Atty. Gen., and L. G. Kendrick, Asst. Atty. Gen., for the State.
Appellant was convicted of murder in the first degree and his punishment fixed at life imprisonment in the penitentiary. This was his third trial. The first two trials ended in mistrials because of hung juries.
The deceased, Sol Madden, came to his death as a result of knife wounds admittedly inflicted by appellant, who claimed self-defense. The fight between appellant and deceased took place outside a Negro dance hall in Lawrence County, Alabama, known as Otis Davis' Dance Hall. There were no eye witnesses to the fight. According to appellant, he and his wife had been to the dance hall earlier in the night and he carried his wife to her mother's home just across the street from the dance hall and left her there. He went in his automobile to carry someone home and was gone about an hour. He returned to the dance hall and saw the deceased on the dance floor talking to appellant's wife. When his wife saw appellant, she immediately left the dance hall without speaking to him. After his wife left, the deceased came up to appellant and told him that he wanted to see him on the outside. When they got outside, appellant asked him 'whereabouts' and the deceased pointed to the north end of the building. According to appellant, he walked toward the north end of the building in front of the deceased. When they got to the north end, the deceased said: 'I guess you saw me talking to your wife?'. Appellant said, 'Yeah.' And 'I told him there wasn't nothing--that if she wanted him and if he wanted her, that they lived right across the street and that he could walk over there and see her', and he told me 'he knowed that.'
From the record:
'A. Pointer finger.
'Q. Pointer finger?
'
On cross-examination appellant testified that he was six feet two inches tall and weighed around two hundred and fifty-five pounds; that the deceased weighed about one hundred and fifty pounds.
Appellant further testified on cross-examination that he and the deceased were scuffling on the ground and while he was trying to take the knife out of the right hand of deceased, he got cut; that he got his knife out of his pocket, opened it with his teeth and cut the deceased several times; that the deceased was not hurting him before he started cutting him; that he was stabbing him pretty hard and that it was his intentions to stab him as hard as he could. After stabbing him several times, appellant got up and he did not see the knife he claimed the deceased had drawn on him and cut him. Somehow the knife went missing. 'Q. And when he got up after you had stabbed him seven times and cut his arm, and he got up there and dropped that 2 by 4, somewhere there he had gotten rid of that knife, hadn't he?
Appellant contends that the trial court committed reversible error in granting the state's motion to strike the plea of former jeopardy. As above stated this was the third trial of appellant upon his indictment, the first two trials ended in mistrials because of the failure of the jury to reach a verdict. Title 30, Section 100, Code of Alabama 1940, empowers the trial judge to declare a mistrial 'when in the opinion of the court or judge there is manifest necessity for the discharge, or when the ends of justice would otherwise be defeated.' The statute fixes the reason for a discharge of the jury and of necessity leaves it to the opinion or discretion of the judge or court to determine whether or not the reason as fixed by law really exists. Since a mistrial is no trial, appellant was not placed in double jeopardy and there was no error in granting the state's motion to strike the plea. Andrews v. State, 174 Ala. 11, 56 So. 998; Hallman v. State, 36 Ala.App. 592, 61 So.2d 857.
Appellant next contends that since he was charged with a capital offense, the trial court erred in requiring him to strike from a jury list containing less than thirty qualified jurors. The record affirmatively shows that the strike list contained the names of twenty-nine (29) qualified jurors. At the outset of the trial, the state waived capital punishment. This alone serves to dispose of appellant's insistence of error. Moreover, no objection was made in the court below to striking from a list of less than thirty qualified persons, hence nothing is presented for review. Ex parte Campbell, 278 Ala. 114, 176 So.2d 242; Autrey v. State, 44 Ala.App. 53, 202 So.2d 88; Washington v. State, 44 Ala.App. 190, 204 So.2d 835.
Fred R. Gillespie was called as a witness for the state to prove the cause of death. He testified that he assumed the office of coroner of Lawrence County in January, 1971, but that he had eight years as acting coroner; that he was thirty-nine years of age and had worked as a mortician in a funeral home since he was fifteen years of age; that his duties as coroner, acting and deputy coroner, encompassed making examinations of bodies and determining the cause of death. He testified that he also helped and assisted in doing autopsies. Over appellant's objections, he testified that he examined the body of the deceased and found seven stab wounds and one laceration in the upper body and torso. He was asked to locate these wounds and said:
He was asked his opinion as to the cause of death and replied that the instrument that entered the body two and one-half inches to the right of the left nipple as it penetrated into the left ventricle of the heart caused the death.
It has been said that a person who is a coroner does not Per se qualify him to express an opinion as to the cause of death. However, where experiential qualifications are shown, a person who is a coroner or undertaker may be qualified to testify to the cause of a particular person's death. Page v. State, 41 Ala.App. 153, 130 So.2d 220; Jordan v. State, 40 Ala.App 693, 122 So.2d 545; Ward v. State, 44 Ala.App. 229, 206 So.2d 897.
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Anderson v. State
...Alabama that a 'mistrial is no trial' and, therefore, that retrial would not place a defendant in double jeopardy. Willingham v. State, 50 Ala.App. 363, 279 So.2d 534, 537, cert. denied, 291 Ala. 803, 279 So.2d 538 (1973)." Id. at 448-49. The Court further indicated that there was no record......
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