Frazier v. State, 6 Div. 743
| Decision Date | 01 October 1974 |
| Docket Number | 6 Div. 743 |
| Citation | 301 So.2d 256,53 Ala.App. 492 |
| Parties | John Earl FRAZIER v. STATE. |
| Court | Alabama Court of Criminal Appeals |
Robert R. Bryan, Birmingham, for appellant.
William J. Baxley, Atty. Gen., Montgomery, and David L. Weathers, Asst. Atty. Gen., Birmingham, for appellee.
Appellant was convicted of assault with intent to murder and sentenced to ten (10) years imprisonment in the penitentiary. He was represented by employed counsel both at arraignment and trial. He pleaded not guilty. After conviction he was found to be indigent and the court ordered a free transcript for him. Trial counsel was appointed to represent him on appeal. However, another attorney was retained to represent him on appeal and the court relieved appointed counsel.
On Sunday, January 17, 1971, the victim, Joseph White, and his brother, Clarence, were visiting in the home of Callie Mae Curry, located at 2614 2nd Alley, South, in the City of Birmingham. Present at the time were Callie Mae and Helen Frazier, sisters of the appellant, and two of appellant's brothers. Appellant walked in the house and did not speak to anyone. The victim asked him for a cigarette and appellant ignored the request and went to the kitchen. A few minutes later he walked back through the room where the other people were sitting and still did not speak but walked out the front door and stood in the yard. The victim got up and walked out of the house. He was going to get some money from his wife to buy cigarettes. He saw appellant and asked him why he did not give him a cigarette. Appellant made some statement that the victim did not understand and pulled a .38 caliber pistol out of his pocket and shot the victim three times. The first shot went through the victim's left forearm and into his stomach. The second shot entered the stomach and the third shot entered the right cheek and came to rest behind the right ear. The victim was standing eight or nine feet from appellant when the shooting occurred and he fell to the ground. While lying on the ground, he heard appellant call his brother Clarence to come out and he would kill him, too. The victim testified that he was completely unarmed at the time he was shot and had not had a quarrel with appellant prior to being shot.
After the shooting, Callie Mae came out of the house and went to the victim and he told her he was cold. Callie Mae testified that while she was kneeling over the victim, she saw a yellow handle case knife with the blade sticking in the ground a foot or two from his head. She went back in her house to get a pillow to put under the victim's head and a blanket to cover him. She was gone only a few minutes and when she returned, the knife was missing and she never saw the knife again.
Another witness called by the defense said the victim was advancing on appellant at the time he was shot and kept moving closer to him until the third shot was fired. This witness said he did not see a knife or other weapon in the victim's hands, but after he fell he saw a yellow handle case knife sticking in the ground.
Appellant testifying in his behalf said that the victim provoked the difficulty and was advancing on him with an open knife and that he was forced to shoot him in defense of his life.
A detective of the Birmingham Police Department came to the scene to investigate the occurrence shortly after the shooting. He did not find a knife or other weapon. He interviewed the witnesses and no one could tell him anything about a knife, 'if there was one there in the first place.'
During the trial while the victim was testifying it was apparent that he was unable to...
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Magro v. State
...his own testimony. Our review on appeal is limited to matters on which rulings have been invoked at trial court. Frazier v. State, 53 Ala.App. 492, 301 So.2d 256 (1974). Moreover, any indications of a consciousness of guilt, however minute or insignificant they may be, are admissible agains......
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