Bynum v. State

• Citation: 348 So.2d 804
• Decision Date: 29 June 1976
• Docket Number: 8 Div. 667
• Parties: Hugh Otis BYNUM, Jr. v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 804

348 So.2d 804

Hugh Otis BYNUM, Jr. v. STATE.

8 Div. 667.

Court of Criminal Appeals of Alabama.

June 29, 1976.

Rehearing Denied Aug. 24, 1976.

James M. Fullan, Jr., Roderick Beddow, Jr., and Albert C. Bowen, Jr., Birmingham, for appellant.

William J. Baxley, Atty. Gen., and James S. Ward, Asst. Atty. Gen., for the State.

TYSON, Judge.

The indictment charged Hugh Otis Bynum, Jr., and Charles X. Hale with the unlawful assault with intent to murder one Loy Campbell. The jury found the appellant "guilty of assault with intent to murder," and the trial court then entered judgment setting sentence at 20 years imprisonment as punishment. The appellant filed a motion for new trial which following a full hearing thereon, was denied.

Mrs. Irene Glass testified that she lived at 103 Hamlin Street in Scottsboro, Alabama, and was employed at the Jackson County Hospital as a nurse and anesthetist. She testified that she lived two houses away from the home of Mr. Loy Campbell on December 4, 1972. She testified that on the morning in question she was at her home and heard an explosion and ran out the door towards the home of Loy Campbell. She stated that she observed Loy Campbell seated in his automobile with the door open and smoke coming from the car. From the record:

"CONTINUATION BY MR. BAXLEY:

"A. I will say I thought he was unconscious; and Dr. Tommy Foster had followed right behind us.

"Q. Where you the first one there?

"A. Me and Minnie Cotten and Dr. Tommy Foster.

"Q. All about the same time?

"A. Yes.

"Q. Go ahead, please, ma'am.

"A. I opened the door, and I tried to get him out, but I could not get him out of the car. His legs were entangled in the debris. And Minnie Cotten and Dr. Tommy "Q. Go ahead, please, ma'am.

were trying to get his legs freed so we could get him out. We were afraid of fire or another explosion.

"A. And it seemed forever, but it wasn't, the ambulance arrived; and they put him in the ambulance; and I ran home and called the operating room.

"Q. Did you give any first aid to him at that time?

"A. No.

"Q. Go ahead.

"A. I called the operating room to ask the operating room supervisor if she would send some doctors to the emergency room, that the ambulance was bringing Loy in and he would need assistance.

"Q. Did you observe his legs?

"A. Yes.

"Q. Describe what you saw, please, ma'am.

"A. Horrible, just barely hanging on by just a little bit of flesh, a little bit of skin; and I am sorry, Loy.

"Q. And did you find, describe the car, the condition of the car.

"A. It's real hard to describe the car, it was torn up so bad. The whole front end and the front seat, all the front part of the car was torn up completely. You cannot describe it. And the back, well, the back was still together; but the front was all torn up.

"Q. Was Loy conscious or unconscious?

"A. Unconscious, apparently.

"Q. And this was approximately 9 a. m.?

"A. Yes.

"Q. And this is located in Scottsboro, Jackson County, Alabama?

"A. Yes."

Porter Dawson testified that he was Fire Chief for the City of Scottsboro. He testified that in response to a call on the morning of December 4, 1972, he went to the residence of Loy Campbell at 107 Hamlin Street. He testified that Loy Campbell's automobile was in the driveway and that there had been an explosion at the scene. He described what he found as follows:

"Q. Could you describe for the jury the scene as you saw it at that time?

"A. Yes, sir; the car, the front part of the car was, of course, blown to bits; the fire wall, the dash, steering wheel, and all was blown back against Loy and his legs; and the doors were blown open; and Loy, at that time, was slumped toward the outside of the car, with Mrs. Glass supporting him; and of course, I proceeded on the opposite side of the car, the passenger side of the car, to work Loy's legs up out of the debris from the fire wall, the wiring, and installation, to get his legs up to where we could remove him from the car.

"Q. Did you observe his legs at that time?

"A. Yes, sir.

"Q. What condition did you find them in?

"A. One of his legs was blown off completely, between the foot and the knee; and the other leg was hanging, I believe you would describe it, by just by the skin.

"Q. By the skin?

"A. Yes, sir."

Chief Dawson further testified that he was familiar with explosions and had previously investigated them. He stated that he detected distinct odor of dynamite. He then described the condition of the residence and of the general vicinity as debris from the explosion had been blown over into neighboring yards and into the Caldwell School playground across the street. Chief Dawson identified several photographs made at the scene which were placed in evidence.

Agent Donald Barrett of the U.S. Treasury Department, Bureau of Alcohol, Tobacco, and Firearms, stated that he participated in the investigation of an explosion at 107 Hamlin Street in Scottsboro, wherein he determined a 1971 Pontiac automobile had been destroyed. He identified an aerial photograph of the scene of the Campbell residence made one week after the bombing. He testified that parts of the vehicle were scattered over approximately a block area and parts of the vehicle were found across the street on top of the Caldwell Joe Morrison, Jr., testified that in December of 1972 he was employed at the Word-Morrison Funeral Home in Scottsboro. He testified that he also operated an ambulance service and on the morning of December 4, 1972, together with his attendant, had carried Loy Campbell to the Jackson County Hospital shortly before 9 o'clock that morning.

Elementary School. Agent Barrett positively identified an M-6 military electric blasting cap fragment which was found underneath a 1971 Pontiac belonging to Loy Campbell. He testified that he continued to participate in the investigation of the bombing with State and Federal Agents and subsequently pursuant to information received from one Linda Darlene Sullivan, he discovered a cache of five sticks of dynamite wrapped with blasting caps similar to that used in the Campbell explosion, on September 24, 1974, behind the Carriage Apartments in Scottsboro. He stated that this dynamite was about 100 yards behind the apartments hidden in a hedge row. He identified a photograph made of the dynamite which was admitted in evidence and that he had taken this to Atlanta for testing and examination at the U.S. Government Laboratory there. He testified that certain pieces of "leg wire" were similar to that found on the motor area of Loy Campbell's Pontiac automobile on December 4, 1972.

Dr. Durwood Hodges testified that he examined Loy Campbell in the emergency room of the Jackson County Hospital at about 9:15 on the morning of December 4, 1972. He testified that Mr. Campbell was in a semiconscious condition in excruciating pain and that both of his legs below the knee had been blown off and there were injuries to his abdomen and face with powder burns to his body. He stated that both legs had certain metallic fragments and he had to amputate both legs that morning.

From the record:

"Q. What was the nature of the injuries to the legs that required that procedure?

"A. Well, the right leg, as stated was destroyed, the soft tissue and the bone, and all circulation, to a degree that you had to amputate above the right knee. Now, the left leg, there was a 50-50 chance that we might save this joint. It's important to save a joint because you can get a prosthesis, an artificial leg, that works better. When you go above both knees, it's much more difficult to fit these prosthesis and get around. If you can save a joint, you want to do everything you can to, not knowing that we could but we wanted to try to, rather than sacrifice it. Later on, it had to be removed.

"Q. For what reason did it have to be removed later?

"A. Because it had some, too much damage to it, too much explosive damage; and it had some foreign bodies in it, also.

"Q. All right, Doctor, before you performed any of the amputation, the original amputation in both legs, were both legs practically blown off at that time?

"A. Yes, sir."

Billy Ray McCrary testified that he lived out Highway 72 near Hollywood in Jackson County, Alabama. He testified that he was released from the federal prison in Atlanta where he had been incarcerated on a liquor violation charge. He was released November 15, 1972. He returned to Jackson County on November 16 and went to his father's home. He stated within two days or three days of his return the appellant Hugh Otis Bynum came to see him alone and that he was driving a 1970 white Buick Electra 225.

From the record:

"Q. Now, Billy Ray, you just tell the Court and jury exactly what happened and everything that happened from the time after you got out of the penitentiary when you first saw Hugh Otis Bynum.

"A. He come up to my father's house; I don't know; I think it was within a week after I got out, and asked me if He said, 'I got some people I want to get killed.'

"Q. Start and tell everything, when he first came up, what you did, where you went with him, and anything.

"A. When he first come up, why, my mother said, 'There is Hugh Otis out there;' and I got up and went to the door and went outside; and by that time, he was outside the car; and he shook hands with me and asked how I was doing and when I got out; and he said, 'I got some people I want to get killed;' and I said, 'Who is it?' He said, 'Loy Campbell, Bob Collins, J. Black, and John T. "Mayor" Reid.'

"Q. What, if anything, did you tell him, if anything, then?

"A. I told him I didn't know nobody; I hadn't been out fooling around; I would look around and see if I could find somebody. He said he had $2,000.00 each.

"Q. He said what?

"A. He had $2,000.00 for each one of them.

"Q. Hugh Otis Bynum said that?

"A. Right.

"Q. And you told him you would look and find somebody?

"A. Right.

"Q. What else did he say then, if anything?

"A. We fooled around there and talked a while; I don't...