Acoff v. State
| Decision Date | 15 May 1973 |
| Docket Number | 2 Div. 79 |
| Citation | 50 Ala.App. 206,278 So.2d 210 |
| Parties | Franklin Delano ACOFF v. STATE. |
| Court | Alabama Court of Criminal Appeals |
William J. Baxley, Atty. Gen., and J. Knox Argo, Sp. Asst. Atty. Gen., Montgomery, for the State.
The Grand Jury of Dallas County, Alabama, indicted the appellant for the first degree murder of one Betty Joyce Castleberry by shooting her with a pistol. Following the lengthy trial, the Jury's verdict found the appellant guilty as charged and fixed punishment at death in the electric chair. Judgment set sentence in accordance with the verdict, and the appellant's motion for a new trial was duly overruled.
The following affidavit was given to B. M. Miller Childers, Judge of the Dallas County Court, on January 13, 1971, by Mrs. Gracie Howard, one of the two victims of an assault which occurred during the early morning hours, between four and five o'clock, of January 10, 1971. The affidavit is as follows:
'Before me, B. M. Miller Childers, Judge of the Dallas County Court of Dallas County, Alabama, personally appeared Gracie Popwell Howard, who being known to me or made known to me, duly sworn, deposes and says that on the morning of January 10, 1971, Betty Joyce Castleberry and myself, Gracie Popwell Howard, were forcibly taken from the R & R Grocery, located on Highway 80 East, Selma, Dallas County, Alabama, by Franklin Delano Acoff, a black male, at gunpoint to a secluded area near the L & N Railroad trussel and at a point between such trussel and the Edmond Pettus Bridge on the South side of the Alabama River, and there, between the hours of four o'clock a.m. and seven o'clock a.m. on said Sunday morning, the said Franklin Delano Acoff did forcibly rape both myself and Betty Joyce Castleberry; and also shot and injured Betty Joyce Castleberry, who died as a result of such injuries; and also shot and injured myself. Franklin Delano Acoff then took from the possession of Betty Joyce Castleberry and myself the following personal property: one (1) keychain which has a square yellow gold locket with a heart and an arrow through the heart on front of locket, and inside the locket there is a picture of myself and my late husband, a fingernail file and knife blade combination and one (1) automobile ignition key to my automobile; and one (1) blue Scripto butane cigarette lighter; one (1) yellow handled pocket knife; and approximately $3.00 in currency and change from my pocketbook.
'The said Franklin Delano Acoff was wearing a dark jacket with a zipper in the front and dark trousers.
's/ Gracie Howard
'Sworn to before me and subscribed in my presence, this the 13th day of January, 1971.
's/ B. M. Miller Childers
Further, at trial, Mrs. Howard testified that following the rape, shooting, and robbery, as above described, the appellant came back to the car and upon being unable to get back in as she had then locked the doors, he struck matches and threw them into the vehicle, setting fire to both women's hair. Mrs. Howard further testified that both she and Mrs. Castleberry had been employed as waitresses at the NCO Club at Craig Air Force Base, and after leaving the club at about 2:00 a.m., they had stopped at a local establishment where they had drunk beer, and upon driving to the front of the R & R Grocery, where they had stopped to use a pay telephone, they were accosted by the appellant at gunpoint.
The appellant's version of the facts were that he knew Mrs. Howard, and in fact had had several dates with her, and that she had come to his apartment on more than one occasion where they had had sex relations previously. Appellant further testified that he did go with the women on the morning in question to the Edmond Pettus Bridge and there had sex relations voluntarily with Mrs. Howard, and as Mrs. Castleberry awoke from an alcoholic stupor, she exclaimed that she would expose the two of them, that Mrs. Howard then pulled out a .32 caliber pistol and as they struggled over it, the gun fired accidently, with the shots striking the victim, Mrs. Castleberry. He testified that he left and denied throwing any lighted matches in the car or setting the women's hair on fire.
On January 14, 1971, the Assistant Executive Director of the Selma Housing Authority, Mr. John H. Kincey, gave the following affidavit before B. M. Miller Childers, Judge of the Dallas County Court:
Franklin Delano Acoff
'Before me, B. M. Miller Childers, Judge of the Dallas County Court, Dallas County, Alabama, personally appeared John H. Kincey, Assistant Executive Director of the Selma Housing Authority, Selma, Alabama, who is known to me, being duly sworn, deposes and says that I am the Assistant Executive Director of the Selma Housing Authority, Selma, Alabama, and I have personal knowledge and personal access to the official records of such housing authority. The City of Selma, with whom I am employed, owns the N.B.F. Homes, a housing project located in Dallas County, Alabama. We rent apartments primarily to enlisted personnel stationed at Craig Air Force Base. However, there are instances in which we rent to civilians who are employed at Craig Air Force Base and others. I have personal knowledge of the fact that Franklin Delano Acoff resides in Apartment 48 AL, N.B.F. Homes. This is a duplex apartment. 48 designates the number of the apartment, A represents that such apartment is a one (1) bedroom apartment, and L represents that such apartment is located on the left hand side of the duplex. I have attached herewith a diagram of N.B.F. Homes and make a part hereof as fully and completely as if set out herein in full with leave of reference as may be desired; and have marked on such diagram the premises known as 48 AL, being the residence of Franklin Delano Acoff.
's/ John H. Kincey
JOHN H. KINCEY
'Sworn to before me and subscribed in my presence, this the 14th day of January, 1971 's/ B. M. Miller Childers
JUDGE OF THE DALLAS COUNTY COURT'
There is attached to Mr. Kincey's affidavit a diagram of the Nathan B. Forrest Homes, Selma, Alabama, being Housing Project No. Ala. 8--1R, which shows the location of the apartment being rented by the appellant at the time of the incident in question, an airman stationed at Craig Air Force Base.
Based on the two affidavits, as herein set forth, Wilson Baker, Sheriff of Dallas County, Alabama, also on January 14, 1971, made the following affidavit before Judge B. M. Miller Childers, Judge of the Dallas County Court:
'Before me, B. M. Miller Childers, Judge of the Dallas County Court, the undersigned, Wilson Baker, Sheriff of Dallas County, Alabama, who is known to me, being duly sworn, deposes and says that there are now being concealed certain property at the residence of Franklin Delano Acoff, located at 48 AL, N.B.F. Homes, also known as Nathan B. Forrest Homes, Highway 80 East, Selma, Alabama, approximately four (4) miles from the Edmund Pettus Bridge, a diagram of N.B.F. Homes, also known as Nathan B. Forrest Homes, is hereto attached and is made a part hereof as fully and completely as if set out herein in full within leave of reference as may be desired;
'There is now being concealed certain property, namely, one (1) chain type key chain which has a square yellow gold locket with a heart and an arrow through the heart on front of locket, and inside the locket there is a picture of Gracie Howard and her late husband, a fingernail file and knife blade combination, one (1) automobile ignition key, one (1) blue Scripto butane cigarette lighter, yellow handled pocket knife, approximately three inches long, believed to have two blades, one (1) .32 Caliber pistol, .32 Caliber ammunition, and one (1) dark jacket and dark trousers and underclothes, which constitutes legal evidence pertaining to Murder in the First Degree, Rape, Robbery, Assault with Intent to Murder, and, that the facts tending to establish the foregoing grounds for issuing a search warrant are as follows:
'The information which I received from Gracie Popwell Howard and which is contained and set out in the affidavit of Gracie Popwell Howard which is attached hereto and is made a part hereof as fully and completely as if set out herein in full with leave of reference as may be desired; information which I received from John H. Kincey and which is contained and set out in the affidavit of John H. Kincey which is attached hereto and is made a part hereof as fully and completely as if set out herein in full with leave of reference as may be desired; and information received from James Small, a toxicologist of the State of Alabama, who performed an autopsy on the body of Betty Joyce Castleberry and informed me that the death of Betty Joyce Castleberry was caused from gunshot wounds to the body inflicted by a .32 Caliber pistol.
's/ Wilson Baker
WILSON BAKER, Sheriff of Dallas County 'Sworn to before me, and subscribed in my presence, the 14th day of January, 1971.
's/ B. M. Miller Childers
JUDGE OF THE DALLAS COUNTY COURT'
Based on these affidavits, Judge Childers then issued a warrant authorizing a search of the apartment located at 48 AL Nathan B. Forrest Homes, Highway East, Selma, Alabama, and the search of the appellant's apartment was conducted at 12:23 o'clock in the early afternoon on January 14, 1971, by Captain Painter, Lieutenant Taylor, and Investigator John Cloud of the Alabama State Department of Public Safety, accompanied by Lieutenant James Foster of the Selma Police Department. Copies of the warrants had been served on the appellant and his wife, along with...
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