Dawson v. State

• Decision Date: 30 June 1972
• Docket Number: 8 Div. 149
• Citation: 48 Ala.App. 594,266 So.2d 806
• Parties: Pride DAWSON v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 806

266 So.2d 806

48 Ala.App. 594

Pride DAWSON v. STATE.

8 Div. 149.

Court of Criminal Appeals of Alabama.

June 30, 1972.

Rehearing Denied Aug. 1, 1972.

C. E. Carmichael, Jr., Tuscumbia, Robert Straub, Decatur, for appellant.

William J. Baxley, Atty. Gen., and Richard F. Calhoun, Asst. Atty. Gen., for the State.

PER CURIAM.

Appellant, Pride Dawson, stands convicted of the second degree murder of Bobby Joe Fusher. He was sentenced to serve thirty years in the state penitentiary.

Curtis Ray Quinn testified that on the 14 of May 1970, he was living in West Memphis, Arkansas. He worked at the same place as Bobby Joe Fusher and had known him about a month. On the day in question he and his family drove to Colbert County, Alabama, in Fusher's automobile. After leaving Quinn's wife and children at her father's home, he and Fusher visited various places drinking beer or whiskey. They arrived at a place called the 157 Motel around midnight. The state's evidence was that the place was operated by Pride Dawson, but not as a motel. Dawson was standing in the doorway when Quinn and Fusher started inside. Dawson said to Quinn, 'You dirty dog, where is my money.' Quinn told him he didn't have the money but would pay him the next time he came up. He told Dawson all he had was some change and a pistol and pulled the gun from his pocket and showed it to Dawson. Dawson whirled around, left the room and returned with a pistol in his hand. He hit Quinn on the side of the head with the pistol. Witness stated he heard a shot and '(W)hen he hit me I seen the fire from the gun and it almost busted my eardrum * * *.' When Dawson came back with the gun Quinn had put his pistol and change back in his pocket and had ordered a six pack of beer.

When the gun fired Quinn and Fusher ran out the door together and into the parking lot. They got behind a parked car and Fusher fell or law down and the last time Quinn saw Fusher he was on his back behind the car.

Quinn got into Fusher's car but Dawson stopped him from leaving by covering him with a pistol. At Dawson's insistence Quinn went back into the motel where he stayed for sometime until he made his escape. While there Quinn saw somebody struggling to get something out the door. It was a heavy object, covered with a quilt which came down in a 'V' shape, 'like somebody laying over a shoulder.' Dawson told Quinn if he started running his mouth about what happened he would be next.

Michael Ray Jordan, whose mother is married to Pride Dawson's brother, testified he was at the 157 Motel the night in question and heard the argument between Quinn and Dawson. He heard a shot and saw Quinn and Fusher as they ran out the door and saw Fusher fall down near the automobile. Blood was coming from Fusher's mouth. There was blood on his face and clothes and a large quantity of blood on the ground around him. The Fusher boy did not move or say anything. He saw Quinn go back in the motel with Dawson, who had a gun in his hand.

Dawson told witness and others to get rid of Fusher and brought a quilt out of the motel. Witness and three other men wrapped Fusher in the quilt and put him in the trunk of a car. Witness and Howard Winchester drove Fusher to La Grange Mountain and left him on the side of an old logging road, still wrapped in the quilt. Dawson was still at the motel when they returned. There was blood in the trunk and Dawson gave Winchester two or three dollars and told him to get the car cleaned up.

Dawson announced he was going home and gave his gun to Jesse Woodall and told Woodall and witness to keep Quinn there. After Quinn left Woodall gave the gun to Jordan.

Wayne Vickery a deputy sheriff of Colbert County testified that on June 4, 1970, in response to a call he went to La Grange Mountain and located a body under a pile of brush. A quilt was wrapped around the upper part and when the quilt was removed there was nothing but bone on the top part of the body.

Mr. Van Pruitt, a state toxicologist, testified he examined the decomposed remains of a body at the Spry Funeral Home in Sheffield. Identification of the body as that of Bobby Joe Fusher was made by comparison of the teeth in the skull with Fusher's dental records from the Department of the Army. Due to decomposition and insect ravage there were no viscera organs remaining and no flesh was attached to the skull. The long bones, the rib cage and the skull showed no fracture. There were no breaks, nothing to indicate that a force had been brought to bear to fracture these bones and no holes penetrating the skull. He found nothing from the remains that gave any indication of a probable mechanism of death, and could give no opinion as to cause of death.

This question was asked by the district attorney:

'Assuming * * * that the person might have been shot and assuming that there is testimony that the person * * * very shortly thereafter was bleeding from the mouth, and assuming that the time lapse of approximately three weeks from the time of the original shot to the time you examined the body, and assuming the body were in the summer time, in warm weather, left out in an open area, exposed to the elements, could you necessarily determine whether or not that person had been shot?'

The witness answered:

'I could not say I could necessarily ascertain the fact that the individual had been shot under those circumstances.'

Defense counsel insists that since the cause of death could not be determined from an examination of the decomposed remains of the body there was a fatal variance between the indictment charging that defendant killed deceased by shooting him with a gun and the failure to prove the means of the killing.

There was no objection to the evidence on the ground of a variance and no requested charge to the jury on the same ground. Taylor v. State, 148 Ala. 565, 42 So. 997.

However, we are of opinion the evidence of the firing of the gun by defendant, the deceased falling with blood exuding from his mouth; his being hauled away, dead or alive, in a very short time and left in the woods at defendant's direction, shows there was no variance between the instrument of death alleged and that proved. As was said in DeSilvey v. State, 245 Ala. 163, 16 So.2d 183, 'A well connected train of circumstances may be as cogent of the existence of a fact as any array of direct evidence.'

We are of opinion the evidence presented questions for the determination of the jury and was sufficient to sustain the verdict. There was no error in refusing the general affirmative charge, nor in denying the motion for a new trial.

State's Exhibits 5, 6, 7, are photographs of the decomposed body and the area where the remains were found. Exhibit 5 shows a closeup view of the skeleton of the upper part of the body. In Exhibit 6 a part of the skeleton can be seen, while the lower portion is clothed in pants and shoes. Exhibit No. 7 shows the lower part of the body, dressed in pants and shoes, the top part covered with brush. The quilt is shown in this picture.

Counsel for defendant objected to each of these photographs on the grounds that it does not show the location of the wounds, cause of death, time of death, relative position of combatants, if any, type of instrument used, if any; does not connect the defendant with the death, in no way identifies the victim. Is not properly identified and its only purpose is to prejudice and inflame the minds of the jury.

We find no error in the admission of the photographs. They were properly identified as correctly portraying the scene and the condition of the objects at the time they were made. The other objections were not well taken.

Officer Wayne Vickery was present when the photographs were taken. He testified it was not possible to identify the person then and there by looking at it. There was no wallet or other means of identification on the body.

The toxicologist testified he examined the long bones of the upper legs as to their apparent length and reached an approximation of height of 5 10 '. He...