Grace v. State , 48 Ala. App. 507 ( 1972 )

PRICE, Presiding Judge.

Appellant, John Clifford Grace, stands convicted of murder in the second degree. His punishment was fixed at ten years in the penitentiary.

The evidence tends to show that during the evening of October 4, 1970, the deceased, Henry Grady Benson, and defendant were at the home of Coleman Gossett, in Centre, Alabama. State’s witness Gos-sett testified the three men were drinking whiskey; that he sat on the bed and went to sleep about seven o’clock. Defendant and deceased were still in the room. When he awoke around midnight Benson was lying on the floor of the room, dead. The witness stated there had been no arguing or cross words between the defendant and deceased and he did not hear a rifle fire.

The state toxicologist testified he performed an analysis on a blood sample taken from the body of deceased, which revealed ethyl alcohol content of 0.48 percent. An individual with this percentage of alcohol would have been in an extreme stage of alcoholic intoxication. This stage is represented by complete absence of reflexes, coma and unconsciousness and on occasions death occurs. In other words, he was “passed out” drunk.

The toxicologist testified death was caused by a gunshot wound in the chest, the bullet passing through the left chest cavity, damaging the heart, resulting in massive hemorrhage. In the left back there was a hole which measured approximately a quarter of an inch in diameter, located two inches to the left midline of the body, four inches below the level of the armpit. On the left side, or lateral surface of the hip there was a rather oval wound. Immediately forward of this there was a very superficial abrasion and then two inches back of, or posterior to this puncture wound in the hip, was another wound in the lateral surface of the left buttock. The wound in the chest was consistent with one formed by the entry of a .22 caliber rifle bullet. Presumably, from the photograph of the body, the wound in the back was the exit wound. No bullets were removed from the body. There was a spent bullet on the floor of the room adjacent to the room where the body was found. The bullet went through a corner of the wall.'

Mrs. Lucinda Hicks, who lived across the street from Gossett, testified she heard a sound like a rifle shot at Gossett’s about 8:30 and in a few minutes heard a car drive away.

State Investigator Riddle found two bullet holes and four spent twenty-two caliber rifle hulls on the sofa.

Jerry Buttram testified he saw defendant around ten o’clock. He was sitting in his car in witness’ yard. He was drunk, foaming at the mouth and his speech was slurred. When witness asked him to leave he drove away. Shortly afterwards the police answered a call and found defendant’s car in the middle of the road with defendant slumped over the steering wheel. He was intoxicated and had whiskey in his car.

The state introduced two written statements purportedly signed by the defendant. In the first statement made at the Centre jail on October 5, 1970, the defendant denied shooting the deceased.

In the second statement made October 9,. 1970, at Montgomery, the defendant said he left Gossett’s and went home but no one was there and he went back to Gossett’s to-pick up his rifle he had left there. Benson was sitting on the sofa and Coleman Gos-sett was sitting on the bed. When he picked up his rifle, a 22 caliber automatic, it went off. The first shot struck Benson, in the chest area and he fell on the floor. Gossett didn’t say a word and neither did' Benson. Defendant got scared and threw-the rifle down and it fired several times. He ran and got in his car and left. When the car stopped he went to sleep. The-three men were drinking together, but they were not fussing or having any trouble.

The toxicologist testified he test fired" the rifle identified as State’s Exhibit 9 at. the firing range; that he fired approximately twenty-five to thirty-five rounds of ammunition from it of varying rates of trigger pull to check it for malfunction of operation and during that time, with the weapon loaded he slammed it into the-ground; bumped and abused it to check the retard safety mechanism and that it did' not fire. It is an automatic loading weapon and semi-automatic in terms of firing-capabilities, which means that for each time it fires the trigger must be pulled onetime, as opposed to automatic when the-trigger is held down and it continues to-fire until empty. On cross examination, the witness stated he could not force the-gun to go off, but he would not say it would not go off.

The defendant contends the court committed reversible error in admitting the second statement on the ground it was involuntary.

At the bottom of the first statement, there appears the notation, “I am willing to take the polygraph test, the lie detector test to prove my innocence.” On voir dire examination state’s investigator Roy Riddle testified the reason for defendant’s presence in Montgomery was to take a lie detector test. He told defendant that in his. opinion the lie detector test would prove his guilt or innocence. He did not in so many words tell defendant it was his opinion that if he took the lie detector test and it did show he was innocent, charges would be dropped against him, but it is possible defendant was led to believe this would be the facts in this situation. He told defendant he did not have to take the lie detector test, but defendant said he wanted to take the test.

In Johnson v. State, (Fla.App.) 1964, 166 So.2d 798, the court stated:

“Perhaps the most frequent instances of a jury being advised of a defendant’s having taken a lie detector test are in cases involving confessions or admissions procured in anticipation of, during or subsequent to administration of a lie detector examination. It is well established that the mere fact that a lie detector examination may have been involved in procuring a confession does not render the confession inadmissible, (citing cases) However, if the defendant is forced to submit to the examination or if the methods of examination are such as to constitute actual or psychological coercion the resulting confession may well be found involuntary.”

The defendant did not testify and no evidence was offered by him concerning the circumstances surrounding the confession. We are of opinion the statement of the officer that the lie detector test would prove his guilt or innocence did not constitute coercion so as to render the statement involuntary.

Murder in the second degree is the unlawful killing of a human being with malice, but without deliberation or premeditation. Title 14, § 314, Code 1940.

“Legal malice” as an ingredient of murder is an intent to take the life of another without legal excuse, justification or mitigation, and it may be presumed from the use of a deadly weapon, unless the evidence which proves the killing rebuts the presumption, Miller v. State, 38 Ala.App. 593, 90 So.2d 166.

Or, as was said by Bricken, P. J., in Barnett v. State, 21 Ala.App. 646, 111 So. 318, to be guilty of second degree murder defendant must have fired the fatal shot willfully, intentionally, and maliciously.

Fully recognizing that this intent to take life is an inference to be determined by the jury from the facts, and the question of whether defendant accidentally and unintentionally fired the fatal shot is ordinarily a question for the jury, nevertheless, we are convinced that no malice toward deceased is shown except that which is infer-able from the use of the deadly weapon and the law says that this presumption does not obtain where “the circumstances of the killing disprove malice.” Dixon v. State, 128 Ala. 54, 29 So. 623.

In the absence of malice there can be no-conviction for murder in the second degree. Smith v. State, 31 Ala.App. 12, 11 So.2d 466.

In this case the defendant requested the-general affirmative charge as to murder in the second degree. We are of opinion its refusal was error.

The judgment is ordered reversed and the cause remanded.

Reversed and remanded.

CATES and HARRIS, JJ-, concur. ALMON and TYSON, JJ., dissent.