Cozart v. State, 8 Div. 934

CourtAlabama Court of Appeals
Writing for the CourtCATES
Citation171 So.2d 77,42 Ala.App. 535
PartiesBilly Ray COZART v. STATE.
Docket Number8 Div. 934
Decision Date20 October 1964

Page 77

171 So.2d 77
42 Ala.App. 535
Billy Ray COZART
8 Div. 934.
Court of Appeals of Alabama.
Oct. 20, 1964.
Rehearing Denied Nov. 3, 1964.

[42 Ala.App. 536]

Page 78

W. A. Barnett, Florence, for appellant.

Richmond M. Flowers, Atty. Gen., and John C. Tyson, III, Asst. Atty. Gen., for the State.

CATES, Judge.

This appeal is from a judgment of conviction of voluntary manslaughter on a first degree murder indictment tried in the Lauderdale Circuit Court. The jury set the punishment at ten years.

The questions for decision are: (1) Whether we, without any transcript of the evidence, can review the ruling of the trial judge that Patton Island, owned by the United States and which was the scene of the killing, was not within the exclusive legislative jurisdiction 1 of the Congress, and (2) was there sufficient evidence to support submission of each and every count on a multi-count indictment the defendant having asked, in writing, for the affirmative charge with hypothesis as to each count.


Plea of Federal Jurisdiction

The first question is not one involving Congressional intent to preempt a species of crime but one of territorial as well as political sovereignty. Pollard's Lessee v. Hagen, 44 U.S. (3 How.) 212, 11 L.Ed. 565. Though the alleged crime may have been [42 Ala.App. 537] committed in a Federal enclave therein, Code 1940, T. 15, § 90, would not make the accused amenable to punishment by the laws of Alabama if the offense was 'exclusively cognizable in the United States courts.' Homicide, 18 U.S.C.A. § § 1111(b) and 1112(b), is a federal felony if committed on ceded lands. 18 U.S.C.A. § 7.

Cozart's counsel was confronted by our abbreviated form of indictment which omits any averment of the place of the homicide. If the geographic facts were undisputed, there would only be a question of law, that is, had Congress taken exclusive power to legislate over the territory in question.

The record, however, does not set out the evidence given on the issue made up by the defendant's special pleas.

The trial judge, in giving pretrial judgment for the State, recited:

'The place in question is the middle portion, or [of] a 413.6 acre tract, of Patton Island in Lauderdale County, Alabama, acquired by the Tennessee Valley Authority in the name of the United States from private parties in 1939.'

Also, he referred to § § 1505 and 1506 OF THE 1923 CODE2 as an offer of cession by Alabama. However, he concluded the evidence showed the United States had not accepted.

Before 1940 certain purposes of acquisition automatically carried implied Federal acceptance. Thus our Attorney General ruled that land for locks and dams came within the scope of § § 1505 and 1506, supra. Quarterly Report of Attorney General, Vol. 23, p. 227.

Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 56 S.Ct. 466, 80 L.Ed. 688,

Page 79

held that when Congress acted in establishing the Tennessee Valley Authority it acted under its enumerated powers of commerce and war. Navigation and flood control are aspects of commercial regulation. Such by-products as electric power and recreation facilities were viewed as necessary incidental activities and not as severable unconstitutional ones.

Thus the United States, when acting through TVA, is acting primarily in the interests of navigation and flood control. 3 And, as Senator Norris is quoted in the Congressional Record, April 30, 1940, Vol. 86, p. 5242, 'the Federal Government owns all the properties that they possess. TVA does not own anything.'

Without having before us the evidence on which the trial judge made his findings of jurisdictional facts, we cannot review his ruling. Beasley v. Beasley, 256 Ala. 647, 57 So.2d 69. The question as to jurisdiction of the subject matter, if it falls under State v. Blair, 238 Ala. 377, 191 So. 237, can be later raised either in a Federal court or by writ of error coram nobis in a state court. People v. Buffo, 318 Ill. 380, 149 N.E. 271; Spears v. State, 26 Ala.App. 376, 160 So. 727.


The deceased, Evywon Curtis, and the defendant had been camping out on Patton Island in the Tennessee River. On a Saturday night a group of insular campers were fishing, frying fish and drinking whiskey, off and on all night.

Sunday Cozart went ashore and came back with a boatman. Finding Evywon had gone to a rock spring on the Colbert County[42 Ala.App. 538] bank with Gene Berry, Cozart had the boatman take him there.

On Berry's leaving the spring, the boatman ferried Evywon and Cozart back to Patton Island, and on being paid shoved off. Evywon and Cozart exchanged angry words.

Witnesses saw Cozart bring Evywon up the bank dragging her. Some testimony was that he was pulling her by the hair though it is not clear as to whether or not he had hold of any of the rest of her as he pulled her. Certainly she seems to have been at least partly walking even though pulled.

With Evywon protesting and asking to be turned loose, Cozart brought her to a spot between two cots, then he slammed her on the ground. One witness said he started stomping her: she saw his foot in the air.

Another witness stated Cozart slung the deceased to the ground. He hit her with, as the solicitor put it in a question, 'a great deal of force.' This witness turned her back, but heard three or four loud 'licks.' Some of the other campers slept through most of the attack.

The deceased went silent. Cozart and some others poured water on her, tried resuscitation, then took her to the Florence Boat Dock, thence to Coffee Memorial Hospital where she was found to be dead.

William T. McVay, an assistant State toxicologist, did an autopsy. He testified in part:

'* * * the pericardial sac * * * was filled with blood which compressed the chambers of the heart. About 400 cc's or less than a pint of blood was in [it] * * * the upper portion of the right ventricle was ruptured. The right ventricle is the right chamber of the heart which pumps the blood to the lungs. It was also noted that a dissecting hematoma was present in the pulmonary artery. A dissecting hematoma is an infusion of the blood which dissects itself in between the tissues of the pulmonary artery itself. It was noted

Page 80

that the liver was lacerated below the round ligament of the liver which sits in the midline of the body and separates two of the lobes of the liver. It was noted that ribs number ten and eleven on the right side were fractured at the lateral spines of the tenth and eleventh thoracic vertebra--the thoracic vertebra are those that are in the spinal column, and ribs come off lateral spines.'

The toxicologist stated the deceased's death resulted from the reptured right ventricle which he said was caused by 'a foreful and sudden bowing of the spinal column.'

This, McVay said, could have been consistent with a man forcefully kicking her in the small of the back with his shoe on. The force of such a kick would have had to have been sufficient to arch the spinal column 'enough so that the round ligament of the liver and compress on the liver itself and lacerate it and catch the heart between the breast bone and spinal column to give it enough compression to repture the heart.'

In addition to the consistency with a kick from a man's shod foot, McVay was of the opinion that the rupture could have consistently resulted from a forceful blow (as above qualified) delivered by (1) a blunt instrument if 'blunt enough,' or (2) a fist.


The indictment was in six counts, each alleging that Cozart, with the required mens rea, killed Evywon Reese Curtis. Count 1 alleged he did so by stamping with his foot; count 2, by kicking with his foot; count 3, by striking with his fist; count 4, by striking with some blunt instrument to the grand jury unknown; count 5, with some weapon to the grand jury unknown; and count 6, by some means to the grand jury unknown.

[42 Ala.App. 539] The jury's finding was guilty of manslaughter in the first degree and set Cozart's punishment at ten years imprisonment in the penitentiary.

The grand jury may aver the same killing in several counts to meet unexpected aspects of the same transaction as the evidence unfolds. Nevertheless there is but one act--murder or manslaughter. Nixon v. State, 268 Ala. 101, 105 So.2d 349.

The means of murder (as well as of other crimes) can be laid alternatively. 4 But defects of law, e. g., duplicity, may be waived if not demurred to. Hornsby v. State, 94 Ala. 55, 10 So. 522.

This case hinges, however, not on a ruling on demurrer but from the trial judge's refusing the two following charges requested by the defendant before the jury retired:

'23. I charge you if you believe the evidence you will find the defendant not guilty under Count Four of the indictment.

'24. I charge you if you believe the evidence you will find the defendant not guilty under Count Five of...

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    ...a shoe does not constitute a deadly weapon under former section 13–1–43, but it could under given circumstances. Cozart v. State, 42 Ala.App. 535, 171 So.2d 77 [ (1964) ], cert. denied, 277 Ala. 698, 171 So.2d 84 [ (1965) ]. An instrument or weapon used in inflicting injury may or may not b......
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