Avery v. State

Decision Date27 April 1939
Docket Number2 Div. 144.
Citation237 Ala. 616,188 So. 391
PartiesAVERY v. STATE.
CourtAlabama Supreme Court

Appeal from Circuit Court, Bibb County; John Miller, Judge.

Lonnie Avery was convicted of murder in the first degree, and he appeals.

Affirmed.

John Foshee and L. S. Moore, both of Centerville, for appellant.

Thos S. Lawson, Atty. Gen., and Wm. H. Loeb, Asst. Atty. Gen., for the State.

GARDNER Justice.

The appeal is from a judgment of conviction of murder in the first degree, with infliction of the death penalty.

Before arraignment, defendant having no counsel, the trial court appointed two members of the local bar to defend him, and the record discloses these attorneys conscientiously exerted all reasonable efforts in his behalf. Their appointment was on Monday March 21st, and the case was set for trial two days thereafter, but was not reached for trial until March 24th at which time counsel made motion in writing for a continuance of the cause for lack of time for preparation.

Our examination of this record fails to disclose any order of the court on this motion. If a ruling was had thereon it does not here appear. The case proceeded to trial on the 24th, and a motion for a new trial, based upon the same grounds set forth in the motion for continuance, was denied. In view of the absence of any ruling on the motion for continuance, it may be seriously questioned that this matter is properly here presented for review. But whether so or not, and conceding for the moment its proper presentation, no reversible error would be made to appear.

Here the appointment of counsel was no mere "empty formality", as insisted in brief, with citation of Powell v. State, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed 158, 84 A.L.R. 527. This case presents no analogy to the Powell case, supra, nor to the other authorities called to our attention, viz.: Blackman v. State, 76 Ga. 288; State v. Collins, 104 La. 629, 29 So. 180, 81 Am.St.Rep. 150; North v. People, 139 Ill. 81, 28 N.E. 966; State v. Simpson, 38 La.Ann. 23; Noel v. State, 17 Okl.Cr. 308, 188 P. 688; Jones v. State, 84 Tex.Cr. 4, 204 S.W. 437, as well as others cited in the note to Powell v. State, supra. The appointment here was far from a mere formality, and, indeed, this record shows that the two attorneys designated by the court to represent defendant, did their full duty intelligently and well.

The trial court's examination of counsel, on the hearing of the motion for a new trial, demonstrates without further elaboration, there was presented no necessity for a continuance of the case, and we think the record discloses that the difficulty under which counsel labored related to the lack of material on which to base a defense, rather than any mere matter of time.

There were three eyewitnesses to the killing who testified for the State. Deceased was defendant's wife, though the couple had been living apart for two months, and unarmed was on her way from the house to get a wash-tub when the defendant shot her with a pistol as she ran. "When she broke to run, he fired at her twice. She turned round and made two or three steps toward him and fell on her face. He approached her then and stood above her and shot twice across her. She was still lying on her face. Then he walked back of her and fired a shot back here in the back of her head."

This was in February 1932. Defendant ran and was apprehended a short time before the trial (March 24, 1938) in Pennsylvania denied that his name was Lonnie Avery, or that he came from Bibb County, or knew anyone there. Defendant did not deny the death of his wife from pistol shot wounds, but his defense was rested upon the theory that deceased had the pistol which she drew from her sweater as they argued,...

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14 cases
  • Aaron v. State
    • United States
    • Alabama Supreme Court
    • July 14, 1960
    ...the exercise of which will not be disturbed unless clearly abused. Logan v. State, 251 Ala. 441, 37 So.2d 753. See Avery v. State, 237 Ala. 616, 188 So. 391, certiorari granted 308 U.S. 540, 60 S.Ct. 119, 84 L.Ed. 455, affirmed 308 U.S. 444, 60 S.Ct. 321, 84 L.Ed. The record does not includ......
  • Goldin v. State
    • United States
    • Alabama Supreme Court
    • January 26, 1961
    ...900, certiorari denied 256 Ala. 429, 54 So.2d 904; Avery v. State of Alabama, 308 U.S. 444, 60 S.Ct. 321, 84 L.Ed. 377, affirming 237 Ala. 616, 188 So. 391. It is urged by the appellant that prejudicial error was committed in admitting in evidence a confession of the appellant on the ground......
  • Johnson v. State, 1 Div. 649
    • United States
    • Alabama Court of Appeals
    • December 9, 1952
    ...sound discretion of the court, and clearly it was not abused in the instant case. Morris v. State, 193 Ala. 1, 68 So. 1003; Avery v. State, 237 Ala. 616, 188 So. 391; Adams v. State, 33 Ala.App. 136, 31 So.2d The state relied primarily, but not exclusively, for a conviction on the testimony......
  • Cauley v. State
    • United States
    • Alabama Court of Appeals
    • April 20, 1948
    ... ... All ... witnesses to these facts were available and testified in the ... cause. We do not conclude that the judge abused his ... discretion in denying the continuance. Morris v ... State, 193 Ala. 1, 68 So. 1003; Adams v. State, ... Ala.App., 31 So.2d 99; Avery v. State, 237 Ala ... 616, 188 So. 391 ... The ... funeral director or mortician testified that he had been in ... the business continuously for over twenty-five years and had ... handled many dead bodies where death was caused by gunshot ... wounds. He also gave a detailed ... ...
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