Armstead v. StateArmstead v. State
Thе appellant was indicted for the first degree murder of Jerry Nathan “by shooting him with a pistol.” At trial, the jury found the appellаnt guilty of murder in the second degree and fixed punishment at thirty years imprisonment. The trial court then pronounced judgment, setting sеntence in accordance with this verdict.
The appellant here admits shooting the deceased, but contеnds that he did no wrong as he was acting in self-defense. We however believe such a defense to be weak at best.
On thе evening of February 18, 1975, both the deceased, Jerry Nathan, and the appellant, Marvin Armstead, were present at a common acquaintance’s house in the section of Bessemer, Alabama, known as Jonesboro. The two prinсipals began arguing and were asked to go outside if they could not control themselves. Once outside, they began tо fight in earnest. Shortly, Alfred Hunter broke up the fight by holding appellant, giving Nathan an opportunity to flee the premises, which hе took advantage of. Once free, appellant elected to “chase after” the fleeing Nathan. Appellant had not gone far, however, when he was picked up by Willie Hunter who had followed him from the
Appellant’s motion for a new trial was overruled.
I
Appellant first contends that the jury was allowed to separate without his agreement. A careful review of the record indicates that no objection was raised аt trial to the alleged separation, nor was there a motion for a mistrial made, nor is such separation alleged in the motion for a new trial as filed in this cause. In brief, no ruling in this respect was ever invoked in the trial court. It is clear thаt such alleged separation may not be raised for the first time on appeal as is the case at bar.
Turner v. State,
II
Apрellant next asserts that the record does not disclose that the alternate juror was duly sworn and empaneled as required by Title 30, Section 58, Code of Alabama 1940. The minute entry in this cause is as follows:
“On this 22 day of May, 1975 trial resumed, having been reсessed to this date. Thereupon in open Court on this day in the presence of the Deputy District Attorney, defendant’s attorney and the defendant came a jury of good and lawful men and women, to-wit: James G. Anderson, Foreman and eleven others, who having been duly empaneled and sworn according to law, and who having heard the evidence and the сharge of the Court, upon their oaths, in open Court on this day in the presence of the Deputy District Attorney, the defendant and his attorney do say:
WE, THE JURY, FIND THE DEFENDANT GUILTY OF MURDER IN THE SECOND DEGREE AS CHARGED IN THE INDICTMENT AND FIX PUNISHMENT AT 30 YEARS IN THE PENITENTIARY. JAMES G. ANDERSON, FOREMAN’.
“And on this 22 day of May, 1975 in open Court came the State of Alabama by its Deputy District Attorney and the defendant in his own proper person and with his attorney and the defendant being asked by the Court if he had anything to say why the judgmеnt and sentence of the law should not be passed upon him replied ‘Nothing’,
“It is therefore considered and adjudged by thе Court that the defendant is guilty of Murder in the Second Degree and that the defendant be imprisoned in the penitentiary for а term of thirty years.”
We have carefully examined this record and nowhere therein do we find any assertion in the trial court that the alternate was in fact not duly sworn and empaneled at the same time the regular jurors were also sworn аnd empaneled. In short, there was no ruling as to this matter ever invoked in the trial court, or on motion for
Ill
Finally, the apрellant asserts that the trial court committed error during the testimony of the appellant when the objection of thе District Attorney was sustained to the following questions:
“A Then as I crossed the intersection and I saw who it was I saw him make a turn like so, raising his hand like he was, like he had something in his hand, a gun or something.”
And again:
“A Yes, I was. At the time, see, I was firing when I ducked down I thought he was coming uр—
“MR REYNOLDS: We object what he thought.
“THE COURT: Sustained.”
A witness, on direct examination, may testify as to
his
intention, motive or other physically unexpressed mental state, provided that the testimony is material to the issues in thе case.
Starr v. Starr,
In the case at bar however, we are dealing not with the appellant’s intention but with that of the deceased based upon the appellant’s observations of him. In effect, the appellant was attempting to testify as to what he thought the deceased was going to do, i. e., as the deceased abruptly turned.
It is clear that the trial court’s ruling is correct as a witness cannot testify as to what another person saw, or what another person sеemed to be doing, as such is a mere conclusion, and not a statement of fact.
Williams v. State,
We have carefully examined this record and find same to be free from error. The judgment of the trial court is due to be and the same is hereby
AFFIRMED.