Cox v. State, 8 Div. 76

• Citation: 363 So.2d 1054
• Decision Date: 31 October 1978
• Docket Number: 8 Div. 76
• Parties: Johnny Ray COX v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1054

363 So.2d 1054

Johnny Ray COX v. STATE.

8 Div. 76.

Court of Criminal Appeals of Alabama.

Oct. 31, 1978.

Paul Frederick, Huntsville, for appellant.

William J. Baxley, Atty. Gen. and Elizabeth N. Petree, Asst. Atty. Gen. for the State, appellee.

JOSEPH J. MULLINS, Retired Circuit Judge.

The grand jury of Madison County returned an indictment against the appellant, Johnny Ray Cox, charging him with the first degree murder of James Eddie Thomas, by shooting him with a pistol. Appellant entered a plea of not guilty. A jury found the appellant guilty of murder in the second degree and fixed his punishment at one hundred and fifty years imprisonment in the penitentiary. The trial court entered a judgment in accordance with the verdict and appellant appeals to this Court. Appellant filed a motion for a new trial, and it was overruled by the trial court.

The appellant was at all proceedings in the trial court represented by counsel of his choice, and is represented in this Court by court appointed counsel. This appeal was submitted to this Court on briefs.

The appellant contends that the trial court erred to his prejudice on the following grounds: first, by overruling his motion to exclude state's evidence because there was no evidence to prove that the appellant committed the crime charged; second, by overruling appellant's motion for a new trial because the evidence was not sufficient to sustain the jury verdict finding him guilty of murder in the second degree.

State's witness, James Franklin, testified in substance the following: that he and his girl friend, Mary Briggs, and her two children lived at 2907 Temple Lane, Apartment E, Huntsville, Alabama; that before his death Eddie Thomas, the deceased, and his girl friend, Jackie Briggs, and her child lived there in the same apartment; that a short time before Eddie was killed Jackie and her child moved out; that about 10:00 o'clock on the day Eddie was shot James Franklin and Eddie left their home and bought three pints of gin and began drinking and riding around; that about 11:00 o'clock they went down to where Jackie was living with the appellant, Johnny Cox; that Eddie was drunk and got out of his car, talked with Jackie, drew a pistol on her, and threatened to kill her; that he took the gun away from Eddie and they got in the car and went home; that on the way home he gave the gun back to Eddie; that when they got home no one else was there except Mary, his girl friend, and her children; that he drank the rest of the gin, ate some ice cream, passed out and went to sleep on the couch, and slept until Mary, his girl friend, awoke him and told him someone had come in and killed Eddie; that he got up and found Eddie lying on the kitchen floor behind the stove dead with bullet holes in him; that Eddie had a .357 magnum gun nickel-plated with a bone handle; that the last time he saw Eddie alive that day he was standing in the floor drinking beer, and had the gun under his belt.

State's witness, Mary E. Briggs, testified in substance the following: that she lived at 2303 Apartment C, Butler Terrace, Huntsville, Alabama; that she was the mother of Mary who was living with James Franklin, and of Jackie who lived part of the year 1977 with Eddie Thomas, the deceased, and part of the year with Johnny Cox, the appellant; that it was in July when Jackie left Eddie and went to live with Johnny; that at about 12:30 o'clock on the day of October 10, 1977 she went over to Eddie's house and no one was there except her daughter, Mary, and her children; that later on James and Eddie came home; that Mary and her children went to the grocery store; that James drank a pint of gin, ate some ice cream, passed out and went to sleep on the couch; that Eddie was drinking and he had a gun in his belt and was sitting at the front door in a chair when she went out on the porch, and just as she was sitting down in the swing the appellant, Johnny Cox, came around the house and went up on the porch; that she saw the tip end of a blue or black gun in his right hand; that Johnny went right on into the house and in a short while she heard a gun shot and jumped up off the porch and ran down the street hollering, and she heard another shot, and she heard another shot; that she did not know who was doing the shooting; that she went back to the house and saw Johnny come out the front door he went in; that when Johnny came out she was on the left side of him, and did not see a gun; that Johnny did not say anything to her or the other people there, but just went right back around the house like he was going to Shannon Street; that the shooting occurred in Huntsville, Madison County, Alabama, at about three-thirty in the afternoon.

State's witness, Sam Lanier, Jr., a Huntsville police officer, testified in substance the following: that on October 10, 1977, about 4:30 o'clock, P.M., he received a call to be on a lookout for the appellant, Johnny Ray Cox; that about 5:17 o'clock P.M. he stopped Johnny's car, and Johnny got out with his hands up in the air, and said where the weapon was without being asked; that he looked on the front seat of Johnny's car and saw the weapon lying there; that he arrested Johnny and kept his car under observation until Officer Cantrell arrived; that he turned Johnny's car and the gun over to Officer Cantrell; that he transported Johnny to jail; that Johnny said he was on his way to the jail when his car was stopped.

State's witness, Gene Cantrell, testified in substance the following: that he was an officer of the Huntsville Police Department; that on October 10, 1977, about 5:30 P.M., he arrived at the scene where Officer Lanier had appellant under arrest; that Lanier's patrol car was parked next to appellant's car; that he observed a weapon in appellant's car, and kept it under observation until Officers Parker and Brewer arrived at the scene; that after the gun was photographed he observed the gun to get the model, make and caliber; that the gun was a .357 magnum and was chrome plated and shiny.

State's witness, Bud Parker, testified in substance the following: that he was employed by the Huntsville Police Department on October 10, 1977 as a Crime Technician, and that his duties consisted of taking photographs, making diagrams, and collecting evidence at the crime scene; that he arrived at the crime scene at 4:20 P.M.; that the appellant was not at the crime scene, but there were several people present; that he found the body of the deceased lying on the floor of the kitchen on its back; that he photographed the scene, made measurements and diagrams of the scene, and photographed the wounds on the chest, neck, head area of the body, and of three slugs in the floor under the chest of the body, after it was moved, and of the stove; all these photographs and diagrams were introduced in evidence; that he recovered one slug from inside the stove and three slugs from the floor directly under the place where the chest of the body was lying before it was removed; that the three slugs recovered from the floor entered the floor straight down from where they went into the body of deceased; that he photographed the pistol in appellant's car before it was removed; it was chrome plated, and was later turned over to the toxicologist together with the four slugs.

State's witness, Patrick Dillaha, testified in substance the following: that he was employed by the Huntsville Police Department and was an investigator on the homicide and robbery squad; that he directed the investigation of the killing of the deceased; that he arrived at the scene of the shooting at 4:10 o'clock P.M., on October 10, 1977; that the deceased was shot six times; that when he arrived at the scene of the shooting the deceased was dead; that two guns were used in the shooting; that one was a .38, and was never found; that he searched the apartment of the deceased and found no gun; that four slugs were recovered at the scene; that the gun found in the appellant's car belonged to the deceased.

State's witness, Brent Wheeler, of the State of Alabama Department of Toxicology and Criminal Investigation, after stating his qualifications, testified in substance, as follows: that he examined the .357 caliber magnum pistol found in appellant's car and the four slugs found in the body of the deceased and the four slugs found at the scene of the shooting of the deceased; that due to the condition of the eight slugs he examined he could not say that any of them were fired from the gun found in the appellant's car; that in his opinion two different types of...