4^TH DIV.

In the Court of appeals of Alabama

EX PARTE:

WILLIAM D. BENTON, ALIAS

APPELLANT

VS.

STATE OF ALABAMA

APPELLEE

_____________

APPEALED FROM CIRCUIT COURT OF

COVINGTON COUNTY

_____________

BRIEF AND ARGUMENT OF

POWELL & FULLER

WHALEY & WHALEY

LEE & LEE

ATTORNEYS FOR APPELLANT

Blevins Vs. State – 68 Ala. -98

State ex rel Denson Vs. Miller – 85 So. – 700; 204 Ala. – 234

Whitehead Vs. State – 90 So. 351; 206 Ala. – 288

Bell Vs. Terry – 104 So. – 336; 213 Ala – 160

Robertson Vs. State – 45 So. – 916; 155 Ala. – 7

Meadows Vs. State – 62 So. – 737; 182 Ala. – 51

Gross Vs. State – 68 Ala. 476

Sullivan Vs. state – 61 Ala. – 48

Dunmore Vs. State – 22 So. – 541; 115 Ala. – 69

Pate Vs. State – 14 So. 2^nd – 246

Mullens Vs. State – 68 So. – 535; 12 Ala. App. – 206

Rogers Vs. State – 75 So. – 264; 16 Ala. App. – 58

Stalling Vs. State – 38 So. 261; 142 Ala. – 12

Kuhn Vs. State – 99 So. – 68; 19 Ala. App. 451

Johnson Vs. State – 10 So. – 667; 94 Ala. – 35

Smith Vs. State – 189 So. – 86: 28 Ala. App. 506

Glover Vs. State – 145 So. – 160; 25 Ala. App. 425

Evers Vs. State – 150 So. – 172; 25 Ala. App. 557

Turner Vs. State - 160 So. 774; 26 Ala. App 537

Douglas Vs. State – 107 So. 791; 21 Ala. App. 289

Ragland Vs. State – 27 So. – 983; 125 Ala. App. 12

Parrish Vs. State - 35 So. 1012; 139 Ala. – 16

Parsons Vs. State – 2 So. – 854; 81 Ala. – 577

Anderson Vs. State – 95 So. – 171; 209 Ala. – 36

Jones Vs. State – 61 So. – 434

Bass Vs. State – 122 So. – 45; 219 Ala. 232

Boyle Vs. State – 154 So. – 575; 229 Ala. 212

Graham Vs. State – 171 So. – 895; 233 Ala. – 387

Williams Vs. State – 15 So. 662; 103 Ala. -35

Jones Vs. State – 25 So. – 830; 17 Ala. App. 394

Walsh Vs. State – 28 Ala. App. 275; 183 So. – 879

Wembush Vs. State – 237 Ala. – 153; 186 So. – 145

STATEMENT OF THE CASE

This is an appeal from the Circuit Court of Covington County, Alabama, from a judgment of conviction for manslaughter in the first degree and the punishment fixed at nine years imprisonment.

STATEMENT OF FACTS

The Defendant was indicted by a grand jury of Covington County, Alabama, December 8^th, 1941, for murder in the first degree for the alleged shooting of Charles Wesley Mizell, with a pistol. The shooting occurred November 6^th, 1941. The Defendant was tried on the indictment February, 1942, which resulted in a mistrial, and again on November 30^th, 1943.

Defendant pleaded not guilty and not guilty by reason of insanity. Defendant claims that he fired the fatal shot in his own defense. The unfortunate fatal difficulty occurred about noon of November 6, 1941, on the main street of the City of Opp. No one saw the first shot that was fired. The shooting attracted the attention of some of the witnesses. Only one witness heard any of the controversy leading up to the fatal shooting. This witness, Mrs. Thompson, does not remember what was said . Naturally, she was excited and could not be expected to remember a conversation in an angry tone as she described it. So far as the State’s testimony goes the shooting was unprovoked and without a motive. The motive and provocation leading immediately up to the difficulty rest largely if not entirely on the testimony of the Defendant. He is corroborated, however, by both State and defense witnesses in much of the circumstances. Defendant’s motive in firing the fatal shot was to save his life. The difficulty was provoked by Defendant’s refusal of an unreasonable and unconciable demand made by deceased. W. B. Benton, Cashier of the Bank of which deceased was President, testified that Defendant and deceased were in deceased’s office for about thirty minutes early on the morning of the day of the shooting – the door was closed and they were alone – the Defendant was again in the Bank about eleven ‘o clock on the morning of the shooting. Mrs. Thompson testified (Tr. Pg. 65 et seq.) that at twelve o’ clock she got off from work, went by the Post Office where she got a check, went to the Bank to get the money on it. She met the deceased at the big post in front of Bank, spoke and shook hands with him, went in the Bank and came out in four or five minutes. She noticed the deceased and another man standing near the Insurance Office and Jewelry Store when she came out of the Bank. She proceeded on her way toward the Post Office, passing between deceased and defendant, and the East wall of the building. As she passed she heard them talking in an angry tone. After she passed then she looked back and saw deceased move his right hand to his right hip pocket or in that direction (Witness described the movement by indicating). When she saw this movement by deceased she turned and did not see the shooting. Defendant’s wife was sitting in her car just South of the aley opposite the Bank, saw deceased standing in front of the Bank and her husband, the Defendant, come up the alley from the direction of his barn. He turned between the corner door of the Bank and the large column in front. Approaching Main Street in that way, he continued walking North on Main Street until he got even with where deceased was standing when deceased turned and said something to Defendant. After a short time she saw deceased move his right arm as she indicated in direction of his right hip pocket and Defendant shot him, (Tr. Pg. 69 et seq.)

The Defendant testified in substance, that deceased called him to his office in Bank on the morning of the difficulty. While in deceased’s private office with the door closed deceased having two pistols in his desk drawer in open view to Defendant, informed Defendant that he wanted Benton Mercantile Company liquidated and further it had to be done. Defendant told deceased he had rather be dead than to do it. (Defendant was President of Benton Mercantile Company, and had been since his Father’s death. The Company was incorporated in 1913. The Defendant had been raised in the business). When Defendant left deceased’s office, deceased told him he wanted to see him again that day. Defendant there-after went about his regular business duties, the last of which was writing a letter, and was on his way to the Post Office to mail it when accosted by deceased on the street. The deceased hailed him and asked him if he was going to do what he told him. Defendant replied: No, thereupon deceased threatened him and reached in the direction of his right hip pocket, when Defendant reached for and got his pistol and shot deceased three times in rapid succession. (Tr. Pg. 168 et seq.) The testimony of Defendant, his wife and Mrs. Thompson is not disputed except in some minor details. These are the only witnesses who saw the movements of both Defendant and deceased immediately before and at the time of the shooting. Mrs. Thompson is not related to Defendant nor shown to be interested in his acquittal. (The Court refused to permit Defendant to show Mrs. Thompson was interviewed immediately after the shooting occurred by the prosecution).

There was considerable testimony offered by the State as to Defendant’s movements and conduct on morning of the difficulty, but was shown not to be anything out of the ordinary. No one, except the officials of the Bank and deceased’s Sister-In-Law, Mrs. Cummins, noticed anything unusual or abnormal about defendant’s conduct and mannerism on the day of the difficulty. (The Court would not let Defendant show communication of forcing Defendant out of business. Such a know design of the deceased would be reasonably calculated to create in the minds of those who knew of it an apprehension of trouble. (Tr. Pg. 78.) W.H. Dorsey, Member of Benton Mercantile Company, associate of Defendant, and witness for the State, observed nothing peculiar about Defendant’s conduct on the morning of the difficulty to create a suspicion that trouble was brewing.

Now the testimony, considered as a whole, shows that Defendant was stockholder and President of Benton Mercantile Company, that he had control of a majority of the stock, Deceased was also a stockholder, owning less than a third of the stock. The corporation was solvent, and did not owe the Bank or anyone anything. The deceased, for some reason known to himself, wanted to liquidate the business. He did not have sufficient voting stock to do this, and obviously had no grounds for equitable relief by a minority stockholder. Deceased made no effort to sell his stock. The stock would have sold for par or above. The Benton Mercantile Company enjoyed an excellent reputation with both its debtors and creditors for honesty and fair dealings. This is reflected by the record in this cause. It was well managed. It was incorporated in 1913, and this Court takes judicial knowledge of the number of depression since that time.

There is another phase of defense, and that is insanity. On this issue the Sheriff filed with Judge of the Court a statement that Defendant was in a serious mental and physical condition, upon the filing of which the Court appointed three physicians to examine Defendant and report their findings, which they did, thereupon the Court ordered the Sheriff to commit Defendant to State Hospital for the reason that he had been found to be presently insane. (Tr. Pgs. 162 et seq.) He was admitted to Bryce Hospital on April, 1942, Tr. Pg. 165 et seq., where he remained until October of the same year. At the time he reached the Hospital and for a considerable time thereafter he was distinctly insane, mentally delirious, confused and irresponsible. See report Tr. Pg. 166. It appears Defendant’s mental delusions and irresponsibility were the result of Bromide Poison or Bromide intoxication. Tr. Pg. 166. The commission (Doctors at the Hospital) did not, according to its report have sufficient information to base an opinion of Defendant’s mental condition prior to the time the bromide psychosis began to develop, some prior time to his commitment. Tr. Pg. 166.

In May or June 1941, Defendant called on Dr. H. W. Waters professionally, complained that he could not sleep. Dr. Waters found that he was highly nervous, heart was fast and his blood-pressure high. Dr. Waters prescribed for him, a part of the prescription was Sodium Bromide. Tr. Pg. 133 et seq. Defendant called on Dr. Waters from time to time after May or June to October 13^th, 1941, and took the Bromide during that time. Tr. Pg. 133 et seq. The testimony is without dispute that Defendant used the Bromide to excess. The testimony shows that he would take a regular dose, particularly at night and if he could not rest, he would take another dose, some nights would take as many as three or four doses in one night. He was highly nervous, walked the floor at night, afraid to leave the house at night, he had delusions about death, wanted to select his burial place. On nights when he could not sleep he would take Bromide until he could sleep. He took about four ounces per week from May or June 1941. Tr. Pgs. 152 et seq.

The testimony further discloses that the Defendant was a man of good character and of good character for peace and quiet. It also disclosed that the deceased was violent, turbulent, overbearing and bloodthirsty. A great number of witnesses testified to these facts. The testimony of Defendant’s good character, and deceased’s bad character is undisputed. The State made capital of the fact that only friends of the defendant testified to his good character; that a great number of them were customers of Benton Mercantile Company of which defendant was and is an officer. Perhaps this Court knows that a man’s character is reflected largely by his dealings with is fellow man. Character witnesses for the defendant were men who had dealt with the Defendant as creditors and debtors. The deceased was also the President of a large business institution. This institution had a great number of customers, else it could not have operated.

PROPOSITIONS AND AUTHORITIES

Proposition I.

1. Plea in Abatement as to Indictment.

Blevins Vs. State – 68 Ala. 92

2. Motion to Quash Venire for irregularities of the jury commission.

State ex rel Denson 85 So. – 700

Whitehead Vs. State 90 So. – 351

Bell Vs. terry 104 So. – 336

Welch Vs. State – 28 Ala. App. 273; 183 So. – 879

Wembush Vs. State – 237 Ala. – 153; 186 So. – 145

Proposition II

1. The remarks of the Court after the jury retired.

Meadows Vs. State 62 So. – 737

Proposition III

1. Argument of Counsel.

Robertson Vs. State 45 So. – 916; 155 Ala. – 7

Cross Vs. State – 68 Ala. – 476

2. Illegal Argument of Solicitor.

Cross Vs. State, Supra

Sullivan Vs. State 61 Ala. – 48

Pate Vs. State 14 So. 2^nd – 246

Dunmore Vs. State 22 So. – 541

Proposition IV

1. Testimony admissible to res gestae

Mullins Vs. State 68 So. – 533

Rogers Vs. State 75 So. – 264

Stalling Vs. State 38 So. – 261

Kuhn Vs. State 79 So. – 394

Humber Vs. State 99 So. – 68

Johnson Vs. State – 10 So. – 667

Smith Vs. State – 189 So. – 86

Glover Vs. State – 148 So. – 160

Evers Vs. State – 150 So. – 172

Turner Vs. State – 160 So. – 774

Proposition V

1. Insanity

Douglas Vs. State 107 So. – 791

Ragland Vs. State 27 So. – 983

Parrish Vs. State 36 So. – 1012

Parsons Vs. State 2 So. – 854

Anderson Vs. State 95 So. – 171

Jones Vs. State 61 So. – 434

Bass Vs. State 122 So. – 45

Boyle Vs. State – 154 So. – 575

Proposition VI

1. Rebuttal testimony to show full transaction when State proves a part.

Graham Vs. State – 171 So. - 895

Williams Vs. State – 15 So. 662; 103 Ala. – 33

Proposition VII

1. Details of former difficulty.

Jones Vs. State – 85 So. – 830

2. Opinion evidence.

McLean Vs. State – 16 Ala. – 672

Mobile Light & RR Co. Vs. Therrell – 88 So. 677; 205 Ala. – 553

Clemons Vs. State – 52 So. – 467; 167 Ala. – 20

Central of Ga. RR Co. Vs. Jones – 54 So. – 509; 170 Ala. – 611

ARGUMENT

This is an appeal from a judgment of conviction of the appellant, whom we will refer to as Defendant, for convenience, based on the verdict of the jury finding him guilty of manslaughter in the first degree on an indictment charging murder in the first degree, and sentencing him to the penitentiary for the term of nine years.

To be continued – approximately 22 pages remaining to be transcribed