Goocher v. State, 5 Div. 126.

• Decision Date: 29 June 1933
• Docket Number: 5 Div. 126.
• Citation: 149 So. 830,227 Ala. 337
• Parties: GOOCHER v. STATE.
• Court: Alabama Supreme Court

149 So. 830

227 Ala. 337

GOOCHER v. STATE.

5 Div. 126.

Supreme Court of Alabama

June 29, 1933

Rehearing Denied Oct. 12, 1933.

Appeal from Circuit Court, Elmore County; F. Loyd Tate, Judge.

Otis Goocher was convicted of murder in the first degree, and he appeals.

Affirmed.

BROWN J., dissenting.

Holley & Milner, of Wetumpka, for appellant.

Thos E. Knight, Jr., Atty. Gen., for the State.

THOMAS Justice.

The defendant was indicted and convicted of murder in the first degree, and his punishment fixed by the jury at life imprisonment.

The witnesses Smith and Cobb testified to finding the body of deceased, on the ground, with a whisky bottle near by; that he was shot several times; that there were signs of bullets having struck the ground at or near the body; and the sheriff was notified.

The witness Golden testified that he was the sheriff; went to the body, found it at the point indicated, clad, as he indicated in a pair of light trousers, black slippers and a shirt; that the body showed a number of shots had pierced it; that he found some .45 caliber bullets under or near the body, and he delivered the corpse to the undertaker. The wife of deceased there identified the husband's remains, and Dr. Sewell examined the same, describing the nature and character of the wound that produced his death.

The witness Price testified that she and another met the defendant and one Preston at a café; that they proceeded by witness' house and thence to a place where the four went in bathing; that, when she came out and was dressed, defendant was with her quite a while, and in the course of their conversation he mentioned the deceased, saying that, if deceased did not pay up, he was going to murder him. The other woman did not hear the threats made before she and her companion came from the water, corroborated in other respects by Miss Price.

Witness Clark testified of defendant's recent threats against deceased for the reasons specifically stated; detailed the time, place, persons present, gave the words spoken, threats made, and the reason therefor. The reasons were, in substance, that Fletcher had been left out of a job (a robbery) arranged and agreed upon by defendant and others; that defendant made the threat that, if he talked too much, they would kill him, saying: "We are going to kill him (meaning Fletcher), if he does not quit talking, we are going to put him on the spot"; that defendant said he "was afraid that he (Fletcher) was going to talk too much, that he had been seeing him around police headquarters * * * that he had had some trouble with him and that he was going to put him on the spot if Fletcher did not come across"; that "he was afraid Fletcher was going to talk about things he knew on Goocher, such things as hold up business and things like that." The witness stated at a later date Fletcher was pointed out to him, and that Goocher then said "he was going to kill that man, that they were going to put him on the spot, and called him a s---- of a b---- and bastard"; that witness heard defendant make such threats against Fletcher in the presence of witness, Preston, and Russell, when they were "talking about the (other) plans." The witness finally stated the last threat as follows:

"The Court: Use the words or language, substantially what Goocher used. A. 'We have planned this job, and left a man out that we are afraid will talk too much, and we will stand pat, we are sure we will stand pat, and if this man Fletcher tries to give us any trouble, we will kill him, we will put him on the spot;' that is as near as I can quote the words that were used on that particular trip; that is not all the conversation but that is the threat;" and that the man left out of such other job was Fletcher.

Whereupon the solicitor tried to locate that other job, and the court declined to allow the solicitor's question: "Did Fletcher take part in the Canterberry robbery?" Witness stated that he saw the defendant for "the last time * * * after that conversation out there on the river bank," and has not "seen him since then until today," which was Saturday, August 13th. The homicide was a few days thereafter on the night of August 16th. We find no error committed in the introduction of the evidence of this witness.

The witness Lockhart testified that, he lived near where the body was found; that between 9 and 9:30 o'clock on the night of the killing a man came to his house making inquiry of one Cain; was told to proceed to Mr. Cobb's home and inquire; that witness later identified the man as defendant, who was at witness' house on the night of the homicide and in that immediate vicinity at the time the shots were heard. His (Lockhart's) version was:

"The car stopped and a man got out and walked up apparently going to come up on the steps, and my wife asked him who he wanted to see and he asked her if she knew where Mr. Cain lives. And she asked me if I knew where Mr. Cain lives and I said I didn't that I never heard of him. She asked the man if he knew on whose place he lived and he said I don't believe I do. And my wife asked him if he lived on Mr. Henry Cobb's place and he said I think that is the place. She said that if he would go up the road and if he lived on Mr. Cobb's place that he could tell him if he lived in this neighborhood. Then he asked me how to get to Mr. Cobb's place. I told him a colored family lived in the first house, the next house a party lived in, the next house was vacant and the next house was Mr. Henry Cobb's. He said 'all right' and walked out and got in the car and said to the driver, ' We will have to go up this road.' The car hadn't been left my house but something like three minutes when the shooting started. The automobile was headed toward Prattmont. That is the direction of where the body was found the next morning and the direction in which I heard the shots. To my best knowledge, the man who was doing the talking is this defendant, Otis Goocher. The moon was shining as bright as day light and you could see the man standing right in front of the window. I was looking right out the window in his face, and his talk was the biggest part of his identification, was the way he talked. * * * He talked some two or three minutes. My wife told him the way to go. I saw him go to the car, get in it and he went kinder east, in the direction the body was found, and it couldn't have been over three minutes from the time the car pulled out until the first shots. There was a car after the shooting was over came back towards Millbrook, a few minutes afterwards, came back by my place." (Italics supplied.)

And on cross-examination witness stated: " After this man got in the car and had been gone about three minutes, I heard some shots fired. I had never undressed. My wife was not in the bed with me, she had never even pulled her clothes off, she was attempting to undress when the man came up. As far as I know my mother-in-law was in the little room across the hall. In my best judgment the defendant here is the man who came up there. The man was dressed in his shirt sleeves, had on a pair of grey pants, and had on a white or blue shirt. He didn't have on a hat. I am sure that he didn't have on a hat. Didn't have on a coat, the man that was out there was in his shirt sleeves and had on no hat. I saw the defendant some three or four, maybe five days after that at Police Headquarters in Montgomery." (Italics supplied.)

A predicate was laid for the contradiction or impeachment of this witness as to how the man was dressed, etc., and on declarations of the witness showing motives or bias, and those of witness' wife, who was a state witness.

Witness R. M. Rawlinson testified: "I recall the day the body of Fountaine Fletcher was found over near Mr. Cobb's. I heard several gun shots the night before. I was in my room lying on the bed. The clock had struck nine, just a minute or two after nine. There was no one in the room with me. Mrs. Rawlinson was in the dining room fussing with the boys. I heard several shots, then an intermission, and then 2, 3 or 4 more shots. I didn't see anything before I heard the shots. After I heard these shots almost immediately I saw the reflection of a car shining in the room. I couldn't say that I heard the car, just saw the reflection of the lights. When it passed it was coming on down the road from where the shooting took place. You could see the reflection from the road just below. Where this body was found the road runs back from my house west coming back toward my house. The road makes a turn from running east and goes north. When passing north, Mr. Lockhart's house is the nearest house it passes and after that it goes east again." (Italics supplied.)

Witness R. M. Rawlinson, Jr., testified that he heard five shots and "quit a half minute and then there were three"; that he "saw two cars come up the road * * * a good ways apart. The first car * * * passed our house * * * turned around in front of our house and went back toward Millbrook. It came from the west in the direction of Mr. Lockhart's house. * * * The car went down the road and turned around somewhere, came back and drove into the gate and turned around and went back east toward Millbrook. * * * I noticed it because I was looking at the other car when it came and turned around. * * * The car that went in our driveway was a Model T Ford. I couldn't tell what kind of car it was that turned around in front of Dr. Thigpen's road and went back in the direction of the shooting."

Mr Curtis investigated the homicide, knew the deceased, arrested the defendant, and found an automatic pistol, .38, in his room. He testified: "I asked him where he was the night of the 17th, which was one week from the time I was...