This case presents the evil potentials of carrying a hand gun without any lawful authority to do so.
In the early morning of February 11, 1971, Charles Wyatt Harper, of Lee County, Alabama, was mortally wounded in his own home by Larry Wayne Fulghum, who shot him with a pistol.
From an examination of the record, we observe that Fulghum may not have been sober at the time of the shooting. By his own testimony, Fulghum had been drinking several hours before he knocked on the decedent's door at 4:30 A.M., and forced his entrance into decedent's house by pointing a gun at Mrs. Vivian Harper, the wife of decedent, when she answered his knock on the door. Fulghum came to see his wife, LeMirle, who happened to be spending the night in the Harper home. Mrs. Harper, a State witness, testified that at 4:30 A.M. her door bell rang. She got out of bed and looked out the window and saw Fulghum's car outside.
Mrs. Harper testified further that her daughter, Judy, who was now out of bed, told Fulghum to go back home and come back the next morning. He said he wanted to see her (LeMirle) tonight.
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Fulghum was indicted for murder by the grand jury of Lee County. He was tried by a petit jury under pleas of not guilty and not guilty by reason of insanity. The jury found the defendant guilty of murder in the second degree. His punishment was fixed at 45 years in the State penitentiary. He appeals, alleging and arguing the following errors: (1) That the trial court erred in assessing defendant with the court costs; (2) that the trial court refused to charge the jury on manslaughter in the second degree; and (3) that the trial court erred in qualifying the jurors who had a fixed opinion against capital punishment
Fulghum testified in his own behalf. He testified that he and his wife were separated at the time of the shooting. Their problem appeared to be Fulghum's violent behavior toward her and the children. He said he had committed acts which he did
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Fulghum testified that he had no recollection of going to the decedent's house. He was arrested at his father's house. He was in bed asleep when the law officer came to make the arrest.
We will consider the alleged errors of the trial court in the sequence in which they are argued by the defendant.
The minute entry in the record shows:
When the defendant was found guilty by the jury, the court pronounced judgment and sentence as follows:
The defendant appealed to the Alabama Court of Criminal Appeals, and the cause was thereafter transferred to this Court by statutory authority.
Defendant argues that he can not be sentenced to hard labor to pay the court costs in a felony conviction. Title 11, § 83, Code of Alabama, 1940, Recompiled 1958. In this respect the defendant is correct. In sentencing to the penitentiary, there is no sentence to pay court costs. Here, any reference to payment of the court costs is mere surplusage and is not to be considered a part of the sentence. Thomas v. State, 41 Ala.App. 674, 149 So.2d 290 (1963); Weaver v. State, 1 Ala. App. 48, 55 So. 956 (1911). Such surplusage in the sentence does not, however, constitute reversible error.
The next alleged error is the trial court's refusal in his oral charge, to charge the jury on manslaughter in the second degree. He stated, "But I will not charge
A defendant who is accused of the greater offense is entitled to have the court charge on the lesser offenses included in the indictment, if there is any reasonable theory from the evidence which would support the position. Stovall v. State, 34 Ala.App. 610, 42 So.2d 636 (1949); Kelly v. State, 235 Ala. 5, 176 So. 807 (1937). Involuntary manslaughter, or manslaughter in the second degree, is where it plainly appears that neither death nor great bodily harm was intended, but death is accidentally caused by an unlawful act, or an act strictly lawful in itself, but done in an unlawful manner and without caution. Williams v. State, 251 Ala. 397, 39 So.2d 37 (1948). Where it is clear to the judicial mind that there is no evidence tending to bring the offense within some particular degree, and where it clearly shows from the evidence that the defendant was either guilty of murder or voluntary manslaughter or innocent, and, where there is no evidence tending to show that the killing was unintentional or accidental, a charge on manslaughter in the second degree is unnecessary and is not proper. Ware v. State, 147 Ala. 699, 41 So. 181 (1906); Ragsdale v. State, 134 Ala. 24, 32 So. 674 (1901); Pierson v. State, 99 Ala. 148, 13 So. 550 (1892). It was not error for the court to refuse to instruct the jury on manslaughter in the second degree. There is nothing in the record tending to show the killing was unintentional or accidental. The defendant did not exhibit any emotions of remorse and regret or offer any assistance to the injured Harper. On the contrary, he told Mrs. Harper that he would blow her brains out if she called an ambulance, and after shooting Mr. Harper the defendant went to his father's house and went to sleep. As a result of the intervention of the shooting, the record is bare as to what happened to LeMirle at that time. The law presumes that a man intends to do what he does. Allen v. State, 148 Ala. 588, 42 So. 1006 (1907). Furthermore, the law infers from the use of a deadly weapon an intent to kill or to do grievous bodily harm. A killing done with a deadly weapon is presumed to have been done maliciously. Cole v. State, 16 Ala.App. 55, 75 So. 261 (1917); Sylvester v. State, 72 Ala. 201 (1882).
The next error alleged by the defendant was that the court erred in qualifying the jurors who had a fixed opinion against capital punishment. The death sentence has been abolished in this State as a form of punishment. Hubbard v. State, Ala., 274 So.2d 298 (1973). This question is now moot.
We have examined the entire record for error and find none.
Modified and affirmed.
HEFLIN, C. J., and MERRILL, HARWOOD and MADDOX, JJ., concur.