Cook v. State, 5 Div. 194

• Decision Date: 29 January 1974
• Docket Number: 5 Div. 194
• Citation: 290 So.2d 228,52 Ala.App. 159
• Parties: Marshall COOK, alias, v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 228

290 So.2d 228

52 Ala.App. 159

Marshall COOK, alias, v. STATE.

5 Div. 194.

Court of Criminal Appeals of Alabama.

Jan. 29, 1974.

Rehearing Denied Feb. 12, 1974.

Walker, Hill, Gullage, Adams & Umbach, Opelika, for appellant.

William J. Baxley, Atty. Gen., for the State.

HARRIS, Judge.

Cook was indicted for murder in the first degree involving the death of William Lee Jackson. He was convicted of murder in the second degree and sentenced to imprisonment in the penitentiary for a term of twenty years. At arraignment, attended by counsel of his choice, he interposed a plea of not guilty. Trial counsel also represents him on appeal. He is free on bond pending appeal.

On March 12, 1973, the deceased was shot twice with a .22 caliber rifle. The shooting took place in the home of Johnnie Lee Haggard, a woman, with whom the deceased had been living for about three years. There is no claim that they were married or had ever held themselves out to the public as husband and wife. It is not disputed that the deceased died as a direct result of the shooting. Appellant claimed the shooting was in self-defense and also in defense of his wife. It is not disputed that the deceased was armed with a hatchet or chop axe, and that appellant and his wife were cut during the melee that ensued and at the time of the shooting. Appellant's wife and Johnnie Lee Haggard were sisters. Mr. and Mrs. Cook lived in a trailer court located on property belonging to Johnnie Lee Haggard and a short distance from her home. The Cooks lived in the trailer court free of rent. The deceased was a free boarder in the Haggard home.

All witnesses present at the time of the fatal shooting had been drinking intoxicating liquors in one form or another during the day of the homicide and probably the day before. According to the testimony of Johnnie Lee Haggard, the deceased had been drinking whiskey the day of the homicide as well as the day before. Two pint bottles of whiskey were observed by the police officer who was dispatched to investigate the shooting. These pint bottles were half empty and were in the living room where he found the deceased lying on the floor. At that time, Willie Lee Jackson (the deceased) was still alive but did not make a statement. He died shortly after he was carried to a local hospital.

The police officer interrogated appellant at the scene of the homicide. He was placed under arrest and carried to the hospital for treatment of the cuts and lacerations inflicted upon him by the deceased with the chop axe. He was then carried to the station house where he was given the Miranda Warnings. Appellant signed a 'waiver of rights' and made the following statement:

'Mr. Marshall Cook stated; That the day before that he and his wife and her first cousin had returned from Florida, About 2:30 A.M. that morning and we went to bed and sleep (sic) until about 10: A.N. (sic) that morning. We got up and I made a salad and my wife (Sallie M. Cook) called her sister Johnnie Lee Haggard to come down to the trailor (sic) and get some of the fruit and vegetables and some of the salad which I had made. Which Johnnie Lee Haggard did come on down. She stayed about 30 minutes then she left and carried fruit and vegetable and the first cousin carried the salad. (Lela Cotney) When they arrived at Johnnie Lee Haggard's House 2002 43rd St. and when they arrived there Willie Lee Jackson meet them at the door with a hammer, in his hand, he broke the salad bowl of salad. Then he threw the hammer at the cousin and called her a bitch. She came back to our trailor (sic) after that my wife tried to called up there. He answered and refused to let her talk to her sister and my wife went up there. He got after her with a hatchet. She left and come back home. We stayed at home the rest of the day and night. This morning 3/12/73, I, Marshall Cook tried to call up there to see see (sic) how my sister in law was. He refused to let me talk to her. Then my wife called two times, he refused to let her talke (sic) to her--The (sic) my wife said that she was going up there and I told her she would not go unless I was with her.

Then I got my rifle (.22 calib) and she and I walked up to her sister residents. Her sister opened the door and let us in. Everything seem al right. I sat the rifle down at the door, and when we started to talke (sic) to Johnnie Lee, Lee Jackson came at me with a hatchet. He hit me on the left arm above the elbo, I jumped back and grabbed the rifle and as I was bringing the rifle up he struck me again on the lower part of my arm. I shot him one time, Then my wife jumped between us. and he swung at her with the hatchet and struck her on the hand (left) Then I shot him again. He staggered to the floor. I told Johnnie Lee to call the police and she did. After she called she left the phone off the hook, I told my wife to call and tell them to bring an amlance (sic) and shortly after that the police arrived.

Upon questioning Mr. Cook if he and his wife had been drinking up there he stated no that what he and his wife had drank was at their own home.

I have read this statement consisting of 2 pages (s), and I affirm to the truth and accuracy of the facts contained therein.

This statement was completed at 8:45 P.M., on the 12th day of March, 1973.

WITNESS: /s/ Lt. E. L. Arrington

WITNESS: _ _

X /s/ Marshall Cook

Signature of person giving

voluntary statement.'

Appellant's wife and Mrs. Haggard were arrested at the same time that appellant was taken into custody, as they were under the influence of intoxicating liquors and were cursing in the presence of the officer. They were carried to the hospital for first aid treatment and then placed in jail charged with boisterous conduct.

The arresting officer found the chop axe on the floor a few feet from where Jackson was lying. He took possession of the axe and the rifle. The rifle was admitted in evidence without objection. Appellant offered the chop axe in evidence. The state objected on the ground that the proper predicate had not been laid, stating, 'Defendant is the man who is going to have to identify this hatchet.' The court sustained the objection, saying, 'I believe he is right, the defendant will have to identify the hatchet.' Subsequently, appellant's wife identified the axe as the one the deceased used in the fight with appellant and was the same axe that she and Mrs. Haggard tried to take from deceased at the time both women were cut by the deceased. She further testified that she had seen this same axe on several prior occasions in the hands of the deceased, and on the day before the homicide, the deceased pointed this axe at her and threatened to kill her and appellant when he got the chance. During her testimony, the axe was again offered in evidence and was admitted without objection. Mrs. Cook also testified that she told her husband about the threat to her life, and to appellant's life. Appellant did not recall his wife telling him that the deceased threatened to kill him, but did recall her telling him about the threat on the life of his wife. The deceased made other threats on the life of appellant but the testimony did not show that these threats were communicated to him.

At the funeral home, a blood sample was taken from the jugular vein of the deceased. This blood sample was placed in two vials by the funeral home employee who 'took a piece of adhesive tape, and put it over the rubber top of it, and put my initials, date and time on it, and placed it in the refrigerator at the funeral home.' He further testified that the next morning he personally removed these blood samples from the precise place in the refrigerator where he had placed them the night before and turned the vials over to a Deputy Sheriff to take to the State Toxicologist at Auburn, Alabama. On cross-examination this witness testified:

'Q. Did it appear to be in the same condition?

'A. Yes, sir, it appeared to be in the same condition.

'Q. To your knowledge, had it been tampered with?

'A. To my knowledge, it had not been tampered with.

'Q. But, you couldn't swear that someone hadn't done something to it, could you?

'A. Yes, sir.

'Q. You could?

'A. Yes, sir.

'Q. Someone couldn't have removed the adhesive, and done something with it then, without you knowing it?

'A. No sir, because my initials were on it, and to my knowledge, no one else has handwriting like mine.

'Q. But, you couldn't say that someone had removed it during the night, or handled it in any way?

'A. No sir, I couldn't say that.

Re-Direct:

'Q. Was it in the same location in the refrigerator, as where you had placed it the night before?

'A. Yes sir.

'Q. And you are swearing under oath, that, that bottle of blood had not been tampered with?

'A. Yes sir, I am.'

The Deputy Sheriff testified that he received the blood samples from the employee at the funeral home and drove straight to Auburn, where he delivered the package to Mrs. Laura T. Chevelin in the office of the State Toxicologist.

Mrs. Chevelin testified that she was employed as a technician in the State Toxicologist Department; that on March 13, 1973, she received the blood samples and made a laboratory analysis. As to her education, she testified that she received a B. S. Degree in chemistry from Duke University, a M. S. Degree in physical chemistry from the University of California, and at Auburn University, she had taken courses in pharmacology, toxicology, and bio-chemistry. She completed two years of study in the Pathology Department at Auburn. The trial court ruled that Mrs. Chevelin was qualified by education and experience to give an opinion as to the laboratory analysis she made of the blood samples, and she testified that the blood contained 0.41 percent alcohol. The blood also contained 11 percent milligram acetone and 8 milligram percent asaprogon.

According to appellant's testimony, which was, in large part, supported by his wife and Mrs. Haggard, the deceased did not...