Burnett v. State, 8 Div. 292

CourtAlabama Court of Criminal Appeals
Writing for the CourtLEIGH M. CLARK
Citation380 So.2d 1021
PartiesWillie Clarence BURNETT v. STATE.
Docket Number8 Div. 292
Decision Date26 February 1980

Page 1021

380 So.2d 1021
Willie Clarence BURNETT
v.
STATE.
8 Div. 292.
Court of Criminal Appeals of Alabama.
Feb. 26, 1980.

Harvey B. Morris, Huntsville, for appellant.

Charles A. Graddick, Atty. Gen., Sarah Kathryn Farnell, Asst. Atty. Gen., for appellee.

LEIGH M. CLARK, Retired Circuit Judge.

On an indictment charging murder in the first degree, a jury found appellant guilty of manslaughter in the first degree and fixed his punishment at imprisonment for ten years. He was sentenced accordingly.

The alleged victim was Nora Banks who was killed by a pistol bullet that entered her skull from front to rear. This occurred while she was in the home of defendant while a drinking and dancing party was in progress in which five or six adults and three or four times as many children were present on Sunday night, April 29, 1979. She arrived after most of the others and was accompanied by a man who later left the house without her. She and some others present left temporarily to obtain alcoholic beverages. She didn't seem to get along well with the others. She engaged in separate arguments with two of the women. State's witnesses testified that the party came to an abrupt halt when they heard a gunshot in another room. Upon hearing the gunshot, they immediately left the house, all except some children, appellant, Nora Banks, and Dennis Scott, seventeen years of age, who testified he had not been drinking.

Dennis Scott further testified he heard the appellant tell Nora Banks "to throw her gun out and come out of the bathroom," and then he heard a shot. He said he heard appellant tell Nora Banks again to come out of the bathroom and that some time thereafter he heard a second shot, and possibly a third shot. Upon hearing the last shot, the witness said he "went back in there" where the shots were fired and saw Nora Banks on the floor and the appellant with a pistol in his hand, and that thereafter appellant said "he was going to call the ambulance and police."

Page 1022

The body of the victim was left lying on the floor until officers arrived. They found and removed a fully loaded .32 caliber pistol from her clothing. A witness for defendant, Joe Ed Kelly, Jr., fifteen yeas of age, testified that after Nora Banks had finished arguing with his mother, she started for the bathroom and at that time pulled a pistol. He said that he then told appellant that "she was getting the gun."

Appellant testified that he heard Joe Ed Kelly, Jr., say "she was getting that gun," and he tried to stop Nora Banks by grabbing her arm, but he didn't succeed. He said he then went to his bedroom and took his pistol out of the drawer, then went back into the hall and asked Nora Banks to "throw her gun out." According to his further testimony, Nora Banks made no response, and he shot into the floor "to let her know (he) had a gun;" that he asked her again to throw her gun out and she did not do so. Then Nora Banks unlocked the bathroom door and came out cursing appellant, with her hand in her purse. He said he then "backed back" and fired.

No contention is made on appeal that the evidence was not sufficient to justify the verdict. We see no reasonable basis for such a contention. Even though there was evidence to show self-defense, the jury was justified in concluding that some of the elements of self-defense were lacking. The...

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4 practice notes
  • State v. Dietz, No. 18909
    • United States
    • Supreme Court of West Virginia
    • March 8, 1990
    ...apprehension of danger, but where the defendant had no prior knowledge of such reputation at the time of the homicide. Burnett v. State, 380 So.2d 1021, 1022 (Ala.Crim.App.1980); Banks v. State, 351 So.2d 1071, 1072 (Fla.Dist.Ct.App.), cert. denied, 354 So.2d 986 (Fla.1977); State v. Lui, 6......
  • Hopkins v. State, 1 Div. 389
    • United States
    • Alabama Court of Criminal Appeals
    • February 1, 1983
    ...show self-defense, the jury was justified in concluding that several of the elements of self-defense were lacking. See Burnett v. State, 380 So.2d 1021, 1022 Even though loaded guns belonging to both victims were found at the scene, testimony of the forensic expert showed that neither weapo......
  • Samuels v. State
    • United States
    • Alabama Court of Criminal Appeals
    • April 26, 1991
    ...he make an offer to prove such knowledge. Thus, the trial court did not err in disallowing the testimony. See, e.g., Burnett v. State, 380 So.2d 1021 (Ala.Crim.App.1980). We also note, that even if the trial court had erred, the appellant never made an offer of proof, and the record does no......
  • Allen v. State, 1 Div. 844
    • United States
    • Alabama Court of Criminal Appeals
    • November 13, 1984
    ...to show self-defense, the jury was justified in concluding that some of the elements of self-defense were lacking." Burnett v. State, 380 So.2d 1021, 1022 (Ala.Cr.App.1980). Not only was the victim unarmed when he was shot, but Stringer could have retreated to a place of safety before resor......
4 cases
  • State v. Dietz, No. 18909
    • United States
    • Supreme Court of West Virginia
    • March 8, 1990
    ...apprehension of danger, but where the defendant had no prior knowledge of such reputation at the time of the homicide. Burnett v. State, 380 So.2d 1021, 1022 (Ala.Crim.App.1980); Banks v. State, 351 So.2d 1071, 1072 (Fla.Dist.Ct.App.), cert. denied, 354 So.2d 986 (Fla.1977); State v. Lui, 6......
  • Hopkins v. State, 1 Div. 389
    • United States
    • Alabama Court of Criminal Appeals
    • February 1, 1983
    ...show self-defense, the jury was justified in concluding that several of the elements of self-defense were lacking. See Burnett v. State, 380 So.2d 1021, 1022 Even though loaded guns belonging to both victims were found at the scene, testimony of the forensic expert showed that neither weapo......
  • Samuels v. State
    • United States
    • Alabama Court of Criminal Appeals
    • April 26, 1991
    ...he make an offer to prove such knowledge. Thus, the trial court did not err in disallowing the testimony. See, e.g., Burnett v. State, 380 So.2d 1021 (Ala.Crim.App.1980). We also note, that even if the trial court had erred, the appellant never made an offer of proof, and the record does no......
  • Allen v. State, 1 Div. 844
    • United States
    • Alabama Court of Criminal Appeals
    • November 13, 1984
    ...to show self-defense, the jury was justified in concluding that some of the elements of self-defense were lacking." Burnett v. State, 380 So.2d 1021, 1022 (Ala.Cr.App.1980). Not only was the victim unarmed when he was shot, but Stringer could have retreated to a place of safety before resor......

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