Cook v. State, 4 Div. 811

CourtSupreme Court of Alabama
Citation269 Ala. 646,115 So.2d 101
Docket Number4 Div. 811
PartiesE. L. COOK, alias, v. STATE of Alabama.
Decision Date15 October 1959

Smith & Smith, Phenix City, and Walker & Walker, Opelika, for appellant.

John Patterson, Atty. Gen., and Robt. Straub, Asst. Atty. Gen., for the state.

LIVINGSTON, Chief Justice.

E. L. Cook was indicted and tried in the Circuit Court of Russell County, Alabama, for the murder of John Mancil. Defendant interposed a plea of not guilty. The jury returned a verdict or guilty of murder in the first degree and fixed punishment at life imprisonment in the state penitentiary. The court adjudged and sentenced the appellant accordingly, and from such judgment this appeal is taken.

The judgment of conviction was entered on October 14, 1954, and an appeal was taken the same day. A motion for a new trial was filed on October 15, 1954, and was denied on June 28, 1955. The court reporter filed the transcript of testimony with the Clerk of the Circuit Court of Russell County on the 23rd day of July, 1955. The state has made a motion to strike the transcript of testimony in that it was not filed within the sixty days allowed for the taking of an appeal as provided for in Sec. 827(4), Title 7, Code of Alabama 1940, Cum.Pocket Part.

Although not controlling in this case, Sec. 827(4) has been amended several times, the last time by Act No. 97, Gen. Acts 1956, pp. 143-144. In pertinent part, it now reads:

'Section 6. The court reporter's certified transcript shall be filed with the clerk within sixty (60) days from the date of the taking of the appeal or within sixty days from the date of the court's ruling on the motion for a new trial, whichever date is later; * * *.'

But the same result has been reached without benefit of the amendment. See Koger v. State, 38 Ala.App. 476, 87 So.2d 552. The transcript of testimony was filed well within sixty days from the ruling on a motion for a new trial. The state's motion to strike is denied.

The state's evidence tended to show that on Sunday afternoon about 3:00 p. m., August 6, 1950, the deceased, John Mancil, and his uncle, William C. Rogers, visited the 601 Club in Phenix City, Alabama. The 601 Club was a membership club in Phenix City, and appellant was a partner in, and the operator of, the Club. The deceased took part in a blackjack game and played for approximately 30 minutes. A discussion took place between the deceased and appellant, and the deceased left the game and the 601 Club. The deceased and Rogers rode around for awhile and returned to the 601 Club at approximately 6:00 p. m. During his absence, some alcohol was consumed by the deceased, but the testimony as to the quantity was in conflict. Upon returning to the 601 Club, the deceased purchased a half-pint of whiskey, sat down at a table and started to drink. After several drinks, deceased got up and engaged in a dice game. While so engaged, the deceased became involved in an argument, quit the dice game and returned to the table. At this point, the evidence is in conflict.

The state's evidence further tends to show that while the deceased was sitting at the table, the appellant approached with a pistol and after ordering the deceased and Rogers to get out, started shooting. The state's evidence further shows that neither deceased nor Rogers made a move toward appellant or threatened him in any way.

The defendant on the other hand contends that the deceased and Rogers were too drunk to shoot dice and were using profanity. The defendant asked them to 'quiet down and quit cursing.' When they persisted in their conduct, defendant went to the office, got his pistol, came back and said, 'I have done asked you men to leave and I mean you are going to leave now.' Then, according to appellant, the deceased stepped up with a chair in his right hand and Rogers had a knife in his right hand and a chair in his left hand. They started advancing on appellant who shot one time into a post. When that didn't stop them, he fired, killing the deceased and wounding Rogers. Appellant called an ambulance and the police, and when the Chief of Police arrived, surrendered to him.

Before proceeding to a discussion of the several propositions of law raised and argued for a reversal of this cause, and for a better understanding of this opinion, we think it not amiss to here state some of the background and uncontradicted facts in the case and facts within the judicial knowledge of this Court.

Albert L. Patterson, long a resident citizen of Phenix City, Russell County, Alabama, was the Demoratic Nominee for the office of Attorney General of the State of Alabama, in the May 1954 Democratic Primary election. During his campaign for Attorney General, Patterson made statements and distributed literature over the State of Alabama and in Phenix City, Alabama, pledging to eradicate gambling and other vices in the state, and particularly in Russell County and Phenix City, Alabama.

Patterson was killed on the night of June 18, 1954, at about 9 o'clock p. m.

On June 25, 1954, the Chief Justice of this Court ordered that a special session of the Circuit Court of Russell County, Phenix City, Alabama, be held, beginning Wednesday, June 30, 1954, reciting that on account of the recent killing of Albert L. Patterson in Russell County, Alabama, it is advisable that a circuit judge outside of said circuit be assigned for duty to conduct the court at said session, and the public good requiring it, the Chief Justice ordered the Honorable Walter B. Jones, Judge of the Fifteenth Judicial Circuit, Montgomery, Alabama, to appear at Phenix City, Alabama, on Wednesday, the 30th day of June, 1954, to conduct the business of the court in said special session, which includes the empaneling of the grant jury for the purpose of investigating the death of the said Albert L. Patterson, and to empanel petit juries to serve at said special session and for the transaction of such other business of the court as may be presented to it, and reciting further that the Honorable Walter B. Jones shall have the full authority of the regular circuit judge of said circuit, and it shall continue until the business of the court is finally disposed of.

On July 9, 1954, the Chief Justice made another order which recites that:

'Whereas, a special session of the Circuit Court of Russell County, at Phenix City, Alabama, duly and regularly called, is now in session, and that Walter B. Jones, Judge of the 15th Judicial Circuit, has been ordered by the undersigned to conduct the business of said court in special session, and it further appearing that it is advisable for the public good that the said Walter B. Jones, Circuit Judge, be assigned additional authority and power to conduct any or all sessions of the Circuit Court of Russell County, Alabama, regular and special, it is, therefore

'Ordered that Walter B. Jones, as Circuit Judge appear at Phenix City, to conduct any or all business of said Circuit Court of Russell County, whether in regular or special session, at such time or times as the said Walter B. Jones, Circuit Judge, may deem necessary or expedient for the proper dispatch of the business and proceedings of said court, with the full authority and power of the regular circuit judge of said court, and until further orders of the undersigned Chief Justice of the Supreme Court of Alabama.'

On July 17, 1954, Judge Jones discharged the regular grand jury theretofore empaneled, which was then in recess. On July 19, 1954, Judge Jones drew and ordered summoned jurors from which to select another grand jury and ordered them summoned for appearance at Phenix City on July 21, 1954. These jurors were served by H. Ralph Mathews, Jr., the then Sheriff of Russell County, Alabama. On July 21, 1954, a new grand jury was organized and empaneled, and recessed until August 9, 1954.

On July 22, 1954, the Governor of Alabama, as Governor of Alabama and Commander-in-Chief of the Alabama National Guard proclaimed a state of qualified martial rule in Russell County, Alabama. The proclamation was as follows:

'Whereas, organized crime has for many years existed in Russell County, Alabama, particularly in Phenix City; and

'Whereas, a gang of men have conspired and are conspiring to thrive on the systematic exploitation of vice; and

'Whereas, the organized lawless activities of this gang continue to hamper the investigation of the murder and the ferreting out of the murderer of Albert Patterson and other crimes; and

'Whereas, there exists in said community a serious emergency, a defiance of the Constitution and laws of Alabama, a state of lawlessness, breach of the peace, organized intimidation and fear, and there is continued and imminent danger thereof, which the local peace officers are unable or unwilling to subdue:

'Now, Therefore, I, Gordon Persons, as Governor of Alabama and Commander in Chief of the Alabama National Guard, to hereby proclaim a state of qualified martial rule in Russell County, Alabama. I Further instruct the Adjutant General of Alabama now actively on duty with units of the Alabama National Guard in Russell County, to take over, assume, supersede and exercise all the activities of the sheriff of Russell County, Alabama, the deputy sheriffs of said county, constable, Chief of police of Phenix City, Alabama, and all police officers of said city, and until further order from me to take and continue to take appropriate measures to suppress the state of lawlessness, intimidation, tumult and fear which reigns in said area.'

On August 9, 1954, Judge Jones ordered highway patrolmen Holland and Stone to act as bailiffs for the grand jury.

On August 24, 1954, H. Ralph Mathews, Jr., resigned as Sheriff of Russell County, Alabama, and on the same date the Governor appointed M. Lamar Murphy as Sheriff of Russell County, Alabama, and his commission as such sheriff was issued on the 30th day of August, 1954.

On the 30th day of August 1954, the grand...

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