Body v. State, 6 Div. 29
| Decision Date | 19 October 1976 |
| Docket Number | 6 Div. 29 |
| Parties | Lorenzo BODY v. STATE. |
| Court | Alabama Court of Criminal Appeals |
Robert C. Boyce, III, Bessemer, for appellant.
William J. Baxley, Atty. Gen., and Randolph P. Reaves, Asst. Atty. Gen., for the State.
Assault with intent to murder; fifteen years.
This is an indigent appeal from a conviction charging the appellant with assault with intent to murder Charles Holland.
The charges grew out of a shooting, which occurred at the Chicken Shack, a local night spot in Bessemer, Alabama. At the time of the shooting, the Chicken Shack was owned and operated by Enoch Oliver and his wife, Frenda.
Oliver testified that he knew Lorenzo Body and Charles Holland and that they were both in the Chicken Shack on September 6, 1974, about 6:00 P.M. Holland's brothers, Roosevelt and Lewis Duncan were there and sometime later Oliver observed an argument involving Elmore Rutledge and Lewis Duncan. Earlier on the night in question Oliver saw a gun in Elmore Rutledge's pocket, and at the time of the argument, saw Body playing pool. Sometime after Oliver broke up an argument between Duncan and Rutledge, he saw Body jerk the gun from Rutledge's pocket and heard him say: 'kill the Duncans and don't argue with them.' According to Oliver, Body then moved back toward the pool table and Holland went to the front door. Body, at that point, shot Holland in the back and then shot Roosevelt Duncan when he 'jumped up.' Body then snapped the gun at Oliver before he backed out the door. Two shots were fired before Body left the Chicken Shack and some other shots were fired after he went outside. Oliver maintained the only gun he saw was the one in Body's hand, and that the shooting occurred about 11:00 P.M.
Oliver explained there was only one door in use at the Chicken Shack because the back door had been nailed shut. Further, he said that all the lights were on with the exception of one.
Charles Holland, the victim of the alleged assault, stated he went to the Chicken Shack after work about 5:00 or 5:30 P.M. Immediately after he arrived at the Chicken Shack, his uncle came to the door. Holland's uncle was intoxicated at the time and on stumbling, a gun fell from his pocket. Holland took possession of the gun and then left the Chicken Shack. According to Holland, the gun was a .38 caliber pistol which was loaded with three or four shells.
Holland testified that about 8:30 P.M. he returned and gave the gun to Elmore Rutledge. He then went toward the front of the building and sat at one of the tables. According to Holland, he consumed three or four beers while at the Chicken Shack. After he had been sitting at a front table a short time he started toward the door and was shot in the back. Holland maintained he said nothing to Body on that evening and that he did not have a pistol.
During cross-examination, Holland explained he got up from the table and took about one step before he was shot. He did not know who shot him.
Elmore Rutledge testified that after he arrived at the Chicken Shack about 8:45 P.M., Charles Holland gave him a gun which he placed in his pocket with the handle protruding. Shortly afterwards, Rutledge had what he termed, a conversation with Lewis Duncan. He maintained it was not an argument, but admitted Oliver, the owner of the Chicken Shack, spoke to them. According to Rutledge, Body then came over, jerked the gun from his pocket and shot Charles Holland. Rutledge did not recall hearing Body say anything at the time but explained that after the second shot, he ran out the door.
During cross-examination, Rutledge stated Holland was not sitting down at the time of the shooting because he had just returned from the dance floor. Rutledge admitted drinking beer that night and recalled that Holland had given him a pistol. Rutledge said that after he had gone outside and got into his car, he saw Body fire the pistol into the ground two times.
G. N. Franklin testified that he was employed by the Bessemer Police Department as a detective and on September 7, 1974, about 1:00 A.M., he was notified of the shooting at the Chicken Shack. Franklin went straight to the hospital where he learned one of the Duncans who had been shot, was dead. After leaving the hospital he talked with Enoch and Brenda Oliver and received written statements from them. Later in the day, about 3:00 P.M., he took two more statements, one from Joyce Davis and another from Elmore Rutledge. Approximately 9:00 P.M., he received a phone call from Lorenzo Body, who told Franklin that he wanted to surrender. On Franklin's arrival at Body's mother's house, Body turned over to him the pistol that he had used during the shooting. Franklin said that they then left the house and went to the police headquarters where he informed Body of his rights. After Body said he understood the rights that were explained to him, he gave a statement that was later reduced to writing and signed by him.
During the trial, a hearing was held out of the presence of the jury to determine the voluntariness of the statement. At the completion of this hearing, counsel for appellant objected to the statement on the grounds that it was inflammatory because it dealt with the instance involving the shooting of Roosevelt Duncan. Counsel argued that it was not relevant to the case charging Body with the shooting of Charles Holland. Over appellant's objections, the statement was read to the jury, and was later admitted into evidence.
In the statement Body said:
(Bracketed material added).
At the completion of Officer Franklin's testimony the State rested and the counsel for the defendant made a motion to exclude the State's evidence. He argued that the State failed to make a prima facie case of assault with intent to murder and there was no evidence connecting Body with the shooting of Holland.
The motion was overruled and the defense called Walter Davis as its first witness. He identified State's exhibit number one, which was the .38 caliber nickel-plated revolver that Officer Franklin took from Body. Davis stated he was not related to Holland but was acquainted with him. He recalled it was at his house while he and Holland were standing at the door that Holland snatched the gun from his belt. Davis denied giving Holland permission to take the gun and said he was not intoxicated at the time.
On cross-examination, he stated that he lived about a block from the Chicken Shack and admitted drinking heavily on the day of...
To continue reading
Request your trial
-
Snider v. State, 6 Div. 461
...where no timely objection has been made at the time of its admission. McQueen v. State, Ala.Cr.App., 355 So.2d 407 (1978); Body v. State, Ala.Cr.App., 341 So.2d 744, cert. den., Ala., 341 So.2d 748 The soundness of the above rule is apparent; appellant should not be permitted to delay his o......
-
Bullen v. State, 8 Div. 509
...as to his own intent, Starr v. Starr, 293 Ala. 204, 301 So.2d 78 (1974), he may not testify as to the intent of another. Body v. State, 341 So.2d 744 (Ala.Cr.App.1976), cert. denied, 341 So.2d 748 (Ala.1977); Flanagan v. State, 369 So.2d 46 (Ala.Cr.App.1979); Magwood v. State, 494 So.2d 124......
-
Ex parte Comer
... ... State, 572 So.2d 886 (Ala.Crim.App.1990). In an unpublished ... ...
-
Waddle v. State, 8 Div. 896
...State, 432 So.2d 558 (Ala.Crim.App.1983); Snider v. State, supra; McQueen v. State, 355 So.2d 407 (Ala.Crim.App.1978); Body v. State, 341 So.2d 744 (Ala.Crim.App.1976), cert. denied, 341 So.2d 748 The rationale for the above proposition is clear. The appellant should not be allowed to postp......