Douglas v. State

• Decision Date: 08 October 1963
• Docket Number: 2 Div. 61
• Citation: 163 So.2d 477,42 Ala.App. 314
• Parties: Jesse Elliott DOUGLAS v. STATE.
• Court: Alabama Court of Appeals

Page 477

163 So.2d 477

42 Ala.App. 314

Jesse Elliott DOUGLAS v. STATE.

2 Div. 61.

Court of Appeals of Alabama.

Oct. 8, 1963.

Rehearing Denied Nov. 12, 1963.

Sam Earl Esco, Jr., Selma, Bryan Chancey and Gordon & Cleveland, Birmingham, for appellant

Richmond M. Flowers, Atty. Gen., George D. Mentz and Paul T. Gish, Jr., Asst. Attys. Gen., for the State.

CATES, Judge.

Appeal from conviction of guilt of assault with intent to murder, Code 1940, T. 14, § 38; sentence, twenty years imprisonment.

Pages 6 and 7 of the record show the following:

'VERDICT AND JUDGMENT.

March 3, 1962

'Comes the State of Alabama, by its Solicitor, and also comes the Defendant, Jesse Elliott Douglas, in his own proper person and by and with his attorneys, and being duly and iegally arraigned in open Court upon the indictment in this cause, for answer to said indictment, pleads and says that he is not guilty in manner and form as charged therein; and issue being joined:

'Thereupon came a jury of good and lawful men, to-wit: Albert S. Champion and eleven others, who having been impanelled and duly sworn according to law, on their oaths say, 'We, the Jury, find the Defendant guilty of assault with the intent to murder as charged in the indictment. Albert S. Champion, Foreman.'

'THE STATE OF ALABAMA, Plaintiff

VERSUS

JESSE ELLIOTT DOUGLAS, Defendant}

IN THE CIRCUIT COURT OF DALLAS COUNTY, ALABAMA

CASE NO. 9392

'SENTENCE

'March 3, 1962

'Directly the Court completed the poll of the jury, the defendant, Jesse Elliott Douglas, was called before the Court in the presence of his counsel and the following proceedings were had:

'The Court: Do you have anything to say why the judgment of the Court should not be pronounced against you at this time?

'The Defendant: No. sir.

'The Court: According to the verdict of the jury finding you guilty of assault with intent to murder, as charged in the indictment, you are accordingly adjudged to be guilty of assault with intent to murder as charged in the indictment, and as punishment for said offense you are sentenced to the penitentiary of Alabama for a period of twenty years.

'The Court: Is there notice of appeal?

'Mr. Esco: Yes, sir.

'The Court: The Court will set your appeal bond at $50,000.00.

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'The undersigned, James A. Hare, as Presiding Judge in the trial of the above styled cause in the Fourth Judicial Circuit of Alabama, does hereby certify that the proceedings above recited are true and correct as to sentence pronounced on the defendant, Jesse Elliott Douglas, in the Circuit Court of Dallas County, Selma, Alabama, on the 3rd. day of March, 1962.

'/s/ James A Hare

'Presiding Judge'

Douglas moves this court to strike the portion of the transcript above quoted.

Douglas further prays that he be discharged--presumably on the ground that the above quoted matter is not a minute entry within the meaning of the statutes and rules governing the minutes of circuit courts. Code 1940, T. 7, § § 1-5; T. 13, § 198, as amended (particularly subsec. (8)).

We consider that this motion is not well taken because the appellant has failed to allege or show that the quoted entry does not represent what actually transpired.

Douglas does not allege that the foregoing entry is untrue. Hence, if we are to consider the appeal at all, we must accept this entry. There must be a judgment of conviction before there can be an appeal. Code 1940, T. 15, § 368; Vick v. State, 156 Ala. 669, 46 So. 566 (opinion in So.Rep. only); Moss v. State, 140 Ala. 199, 37 So. 156; Ex parte Loyd, Ala., 155 So.2d 519.

The tendencies of the evidence were:

William C. Smith, a physician and surgeon of Selma, Alabama, testified as follows:

'Q Sometime during the day of January 18, 1962, did you have one Charles Layman Warren as a patient? A Yes.

'Q Where did you first see him, Doctor? A In the emergency room at the New Vaughan Memorial Hospital.

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'Q Will you describe those injuries, Doctor? A He had injuries to his chest on the left side which apparently was caused by a gun shot of some sort.

'Mr. Esco: Now, if your Honor please, he can answer the question, but a further description of the injuries is not responsive.

'The Court: Overrule.

'Mr. Esco: We except, if you please.

'Q Proceed. A Injuries caused a partial collapse of his lung on that side and also some bleeding inside of the chest. He had other minor injuries, nicks and cuts.

'Q Did you xray his body? A Yes, sir.

'Q Did the xrays show further injuries? A Well, they showed the injuries to his lung on the left side and other organs inside his chest, and there was bleeding in his chest.

'Q And did the xrays show any foreign matter in his chest? A Yes, there were several metallic fragments. Two of these were about a quarter of an inch in diameter, and some very small minute particles.

'Q Did you perform any minor or major surgery on him? A Yes, Sir, I put a small tube into his chest to remove the air and blood that had accumulated, and to remove any more that might be there subsequently.

'Q Now, you said something about one of his lungs partially collapsing. Tell us about that, Doctor. A Well, the left lung was collapsed approximately 10% to 15% of its normal size. This apparently was caused by escapement of air from his lung into his chest.

'Q Doctor, from your experience as a doctor and from your observation of these injuries that you have just described, were they the type of injuries that could have caused death? A Yes, I think they could have.

'Q Were they the type of injuries that cause grevious bodily harm? A Yes, they were serious injuries.

'Q How long did this man stay in the hospital, Doctor? A. Twelve days.'

Mr. Warren testified that early in the morning of January 18, 1962, he was driving a West Brothers truck pulling a Bowman Transportation trailer. He had left Birmingham for New Orleans via U. S. Highway 11 south to Woodstock, Alabama. There he turned off on Highway 5 to the south. As he got near the crossing of Highway 5 and U. S. 80 at Brown's Dallas County:

'* * * I met an on-coming car, and when it got even with me I heard a bam-bam, and I looked over to see if I could see what it was, and I saw the hole in the door and then I knew I was shot. I realized someone had shot me, and I got the truck stopped, and another driver who was with me helped me get across the road and lay down, and he stopped the next car and had them call the ambulance.

'Q Where did that shot come from? A It came from the car that I was meeting.'

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'Q Did you see a car that night? A Yes, sir.

'Q About the time you were shot? A You mean around the time I was shot?

'Q Yes. A About--oh, I would say a few minutes before I was shot, there was a white '59 Ford passed me, and it was going the same way that I was going.

'Q And how long after that was it before you were shot? A It was a very short time. I couldn't give you the exact minutes, but I'd say a few minutes--a matter of a few miles.

'Q Were you able to observe the automobile tag on that car? A The one that passed me?

'Q Yes. A Yes, sir, it was a 1-A tag. ¹ I didn't read the numbers on it.' (Emphasis supplied.)

The State's second witness was Mr. Edward Gorff, who was also driving for West Brothers running some 65-70 yards behind Warren:

'Q And in what position were you and Mr. Warren traveling? A He was in front.

'Q And who was behind? A Warren was in front and I was in the truck following him.

'Q And did you attempt to pass him? A Well, I was fixing to pass him and stop and tell him let's eat before we got way down the road.

'Q And did something happen to prevent you from passing him? A Yes, sir. We met a car.

'Q Now, previous to that, had an automobile passed you going south? A Yes, sir.

'Q Did you get a look at that car? A Yes, sir.

'Q What color was it? A White.

'Q What make and model? A '59 Ford Galaxie.

'Q Did you observe the tail lights on that Ford? A Yes, sir.

'Q How many tail lights did he have? A Had one burning and one was burned out.

'Q Which one was burning and which one was burned out? A The right one was burned out and the left was shining.

'Q And had you gotten close to him--did you hear a shot that night? A Yes, sir.

'Q And had you gotten up close behind Warren when that happened? A Yes, sir.

'Q Approximately how close were you to him? A Approximately sixty-five or seventy yards.

'Q And just tell us what you saw and heard and observed there, just when you got to Highway 80. A We met this car. And I was fixing to pass him and I saw a car come over the hill and I fell back behind him. I was getting up close enough so I could stop him at the junction, and the car lights blinded me and I pulled back over to the right side of the road as far as I could to keep the lights from blinding me so I could see when he got around, and I heard this shot, and Warren put on brakes and pulled off to the side of the road. I was next, so I pulled off too, to see what was wrong.

'Q The car that was meeting you, do you know whether his lights were on bright or dim? A Well, four of them shining. I imagine they were on bright.

'Q And after you heard this shot, did that car have to come on then by you? A Yes.

'Q Did you look at it? A Well, I seen it was a white car is all I could tell, because the lights were on bright, and that's about all the time I had to see--close together.

'Q And you could tell what color it was? A Yes, sir.

'Q What color was it? A It was a white car.

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'Q And when this car first passed you going south, did you observe the tag number? A Yes, sir.

'Q And what was the prefix on there? What county was it from? A Jefferson county.

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'Q The next afternoon did you go to Anniston, Alabama, with Captain Thornton of the Alabama Highway Patrol? A Yes, sir.

'Q And where did he carry you?

'Mr. Esco: We object to all this. This is too remote from the scene. Not part of the res and has nothing to do with this case.

'The Court: Overrule at the present time.

'Mr. Esco: We...