Wilson v. State

• Decision Date: 19 August 1975
• Docket Number: 6 Div. 605
• Citation: 318 So.2d 753,56 Ala.App. 13
• Parties: Frank WILSON, Jr. v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 753

318 So.2d 753

56 Ala.App. 13

Frank WILSON, Jr. v. STATE.

6 Div. 605.

Court of Criminal Appeals of Alabama.

Aug. 19, 1975.

Ralph C. Burroughs, Public Defender, Tuscaloosa, for appellant.

William J. Baxley, Atty. Gen., and Joseph G. L. Marston, III, for the State.

BOOKOUT, Judge.

First degree murder: sentence, life imprisonment.

The State's first witness, Dr. James W. Sherwood, testified that he examined John Clay Smith, Jr., in Druid City Hospital, Tuscaloosa, on November 24, 1972. He testified that Smith died of a wound from a shotgun fired at close range.

Mrs. Dorothy Bryant testified that on November 24, 1972, she was working under an arrangement with the Veteran's Administration to board certain veterans in her home, one of which was John Clay Smith. She stated that her half-brother Frank Wilson, Jr., came to her home on that date. He had an argument with Smith, whereupon, she ordered him from her home and he left. She then went into her child's room and no longer than thirty minutes later, she heard two shotgun blasts. At that time, she locked the bedroom door and heard the appellant then begin knocking on the door, saying: 'open up, open up, I'm gonna to kill you, I'm gonna to kill you.' She did not open the door and appellant left.

Smith called to her, and she found him lying wounded in the corner of his bedroom. She did not see a knife or other shiny object in the room near Smith. She looked out the window and saw her half-brother, the appellant, going down the driveway with a shotgun in his hands. She saw Thurman Crummie, Jr., drive up in an automobile.

Thurman Crummie, Jr. testified that on November 24, 1972, he drove to Dorothy Bryant's home and saw Frank Wilson come out of the house with a shotgun in his hands. Wilson told him he was going to turn himself in, that he had just killed John Clay Smith. Wilson unloaded the shotgun, handed two shells to Crummie, put the gun in the car, and the witness drove him to the home of Jenny Kemp where James Wilson picked up the defendant and drove him off.

Johnny Wilson testified that he was the first cousin of the appellant. On the date in question, the witness was in Dorothy Bryant's home. He saw the appellant leave in his automobile and return about a half hour later with a shotgun. The appellant walked through the den where the witness was sitting with an elderly veteran, went upstairs, and then two quick shots were heard. He saw the defendant then leave the house with a shotgun. The witness went to Smith's room and tried to help another veteran carry Smith to the car in order to take him to the hospital, but they were unable to do so.

Witness Jenny Kemp stated that she was a first cousin of Dorothy Bryant and of the appellant. She said Thurman Crummie brought the appellant to her home on the date in question. The appellant had a shotgun in hand and asked her to take him to town and turn him in, but she called her brother to take him. The appellant told her he had shot John Smith twice. The appellant did not mention Smith having a knife or any weapon, neither did he mention that the gun accidentally fired. In relating her conversation with the appellant, the following transpired:

'A. He told me he had shot Smith.

'Q. All right, did he tell you how many times?

'A. He told me he shot him twice.

'Q. All right, did you ask him for any explanation of why he shot John Smith?

'A. I asked him what happened and he just said they had a round, something like that, something pertaining to that.'

James Wilson testified that he was a first cousin of the appellant and that Jenny Kemp was his sister. He said he lived about three or four thousand feet from Dorothy Bryant's house. On November 24, 1972, he received a call and went home where Thurman Crummie, Jenny Kemp and the appellant were waiting. The witness stated that the appellant had a shotgun at that time. He carried the appellant to the county jail. He further stated that he had never seen the deceased with a knife.

Cecil Simpson, a Tuscaloosa County Deputy Sheriff, testified that he and Deputy Sheriff John Colburn went to the scene of the shooting on the date in question. They found the deceased, John Clay Smith, Jr., lying in a back bedroom wounded. The witness did not see a knife or shiny object around Smith. The officers did not observe a scabbard on the deceased. The witness stated that Smith was still alive at the time he and Deputy Colburn were in the bedroom.

James Ronald Owen, Tuscaloosa County Jailor, testified that the appellant came to the jail on November 24, 1972. He asked the appellant if he could help him, and the appellant replied: 'Yes, I believe y'all looking for me. I just shot sombody.' The appellant did not mention the gun firing accidentally or that the deceased had a knife.

Bill Hobson, an investigator for the Tuscaloosa County Sheriff's Department, stated that he went to the Bryant home on the date in question. He examined the room of the deceased and did not find a knife or other weapon. He took photographs of the room.

At the conclusion of the State's evidence, the appellant moved to exclude on grounds that no Corpus delicti had been proved and that the evidence did not establish a prima facie case of homicide. The trial court overruled, and the defense proceeded with its evidence which was later followed by rebuttal witnesses on behalf of the State.

Deputy Sheriff Prentiss Gardner was asked by defense counsel if he had heard firearms go off in confined areas and whether it would be difficult to tell if one or two shots were fired when a gun goes off once. He said that four or five months earlier, he had heard one shot fired in the county jail that sounded like two shots to him.

Frank Wilson, Sr., testified that he was the father of the appellant. He stated that Dorothy Bryant was his daughter by his first wife and that he knew her reputation in the community for truth and veracity and that it was bad. He stated that his daughter and the deceased were having an affair. He said he knew the reputation of his son in the community for peace and quietude and that it was good. He further testified that the deceased usually carried a dirk or hunting knife and scabbard on his belt.

Jessie Riggs stated that he, his wife and two children, Dorothy Bryant, her daughter and the deceased went to Disney World in Florida, the previous summer. He said Mrs. Bryant and the deceased shared the same motel room for four nights. He stated that the deceased used to carry a small knife and a scabbard on his belt.

Bobby Wilson, brother of the appellant, testified that Dorothy Bryant's reputation for truth and veracity in the community was bad and that she was having an affair with the deceased. Mrs. Francis Tierce, likewise, testified that Mrs. Bryant's reputation for truth and veracity was bad.

Woodford Wilson, also known as James Wilson, testified that he was the appellant's brother. He stated that on the afternoon of the shooting, the appellant came by his home, stayed about twenty minutes and left. He said the appellant did not take a shotgun with him when he left, but did take two dogs and a hunting vest. He said the appellant appeared normal to him.

Frank Wilson, Jr., the appellant, testified in his own behalf. He stated that he knew John Clay Smith, that Smith was a veteran staying at the home of Dorothy Bryant, the appellant's half-sister. He said his relationship with Smith was friendly. He testified that Mrs. Bryant and Smith were having an affair.

On the day of the shooting, he said he got up early and went deer hunting. After hunting, he went to the Bryant house. Before entering, he put his shotgun in an old automobile standing in front of the house and then went inside. From there, John Clay Smith and Mrs. Bryant gave him a ride to a friend's house. He said their attitude was friendly. Sometime later that afternoon, they picked him up and brought him back to the Bryant house.

On this occasion, he engaged in an argument with Pat Wilson, the white wife of his brother, telling her he did not believe in racially mixed marriages. He said she got mad, and Mrs. Bryant asked him what he did to make Pat cry, and he replied that he had done nothing. He said Mrs. Bryant then ordered him out of the house saying she would have Smith throw him out if he did not leave.

The appellant said he left the Bryant home and drove to his father's leaving his gun in the old car outside the Bryant house. He planned to go rabbit hunting with his brother that afternoon. He walked back to the Bryant house, got the gun from the car, and began unloading it as he walked and reloaded it with another type shot for rabbit hunting. He was hunting as he walked away from the Bryant house, but then decided to return to tell his brother in which direction he was going hunting. He walked through the Bryant house where he said he was attacked by Smith.

The appellant claims that while walking through the Bryant house, Smith attacked him in a hallway with a knife. He said he hit at Smith with the gun, apparently in self-defense, and it discharged without the trigger being pulled. He said Smith jumped back into his bedroom, then Mrs. Bryant came out of one room and went into another. He knocked on her door, but she did not reply. Since he knew there were other guns in the room where Mrs. Bryant entered, he decided to leave the house. The appellant said he did not know then if he had shot Smith. He said Smith usually carried a hunting knife which had a blade of about nine inches in length.

The appellant testified that he did not touch the trigger when the gun fired and that it fired only one time. He said that he told one of the officers at the county jail when he turned himself in that Smith had a knife at the time of the shooting, and then refused to answer any further questions without an attorney.

On cross examination, the appellant said he had never fired, a shotgun or any type gun into his fathe...