Harris v. State

• Decision Date: 20 January 1976
• Docket Number: 1 Div. 623
• Citation: 352 So.2d 460
• Parties: Johnny HARRIS, alias v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 460

352 So.2d 460

Johnny HARRIS, alias v. STATE.

1 Div. 623.

Court of Criminal Appeals of Alabama.

Jan. 20, 1976.

Rehearing Denied March 9, 1976.

William H. Allison, Jr., Louisville, Ky., W. Clinton Brown, Jr., Mobile, for appellant.

William J. Baxley, Atty. Gen., Eric A. Bowen, G. Daniel Evans, and James S. Ward, Asst. Attys. Gen., for the State.

Morris S. Dees, Jr., Joseph J. Levin, Jr., John L. Carroll, Pamela S. Horowitz, Montgomery, and Kenneth Cooper, Bay Minette, Ala., amicus curiae.

HARRIS, Judge.

Appellant was convicted of murder in the first degree and sentenced to death and the execution date was set for April 18, 1975, but was suspended pending an automatic appeal to this Court.

Omitting the formal parts, the indictment reads as follows:

"The Grand Jury of said County charge that before the finding of this indictment Johnny Harris, alias John Harris, whose true name is to the Grand Jury otherwise unknown, a convict, having been sentenced to imprisonment in the penitentiary of the State of Alabama for the term of his natural life, by the Circuit Court of Jefferson County, Alabama, while such sentence remained in full force against him, and while he was serving under said life sentence did commit murder in the first degree in this; that the said Johnny Harris, alias John Harris, did unlawfully and with malice aforethought kill Luell Wheeler Barrow by stabbing or cutting him with a knife or a knife-like instrument, a further description of which being otherwise unknown to the Grand Jury; against the peace and dignity of The State of Alabama."

Appellant was serving five life sentences at the time the above indictment was returned by the grand jury of Escambia County.

Title 14, Section 319, Code of Alabama 1940, provides as follows:

"Any convict sentenced to imprisonment for life, who commits murder in the first degree, while such sentence remains in force against him, shall, on conviction, suffer death."

The above-quoted statute has been in force and effect in Alabama for over a century. The highest Court of this state has held that this statute is not offensive to the Constitution as class legislation.

In Bailey v. State, 211 Ala. 667, 101 So. 546, the Supreme Court said:

"It is provided by the statute that any convict sentenced to imprisonment for life, 'who commits murder in the first degree while such sentence remains in force against him, must, on conviction, suffer death.' Code 1907, § 7089. This statute is not offensive to any clause of the state or federal Constitutions. The statute cannot be held offensive to organic law as class legislation. Williams v. State, 130 Ala. 31, 30 So. 336; Singleton v. State, 71 Miss. 782, 16 So. 295, 42 Am.St.Rep. 488; Brown v. State, 50 Tex.Cr.R. 114, 95 S.W. 1039; People v. Hong Ah Duck, 61 Cal. 387; People v. Majors, 65 Cal. 138, 3 P. 597, 52 Am.Rep. 295; State v. Connell, 49 Mo. 282; Kennedy v. Howard, 74 Ind. 87. It is not ex post facto. 24 L.R.A. (N.S.) 433, note. It does not impose cruel and unusual punishment, nor does it inflict double punishment or put the accused twice in jeopardy. Borck v. State (Ala.Sup.), 39 So. 580; Underhill on Crim.Ev. (2d Ed.) pp. 819, 820, §§ 506, 507."

Mr. Justice Gray, speaking for the Supreme Court of the United States, says of such statutes:

" 'It is within the discretion of the Legislature of the state to treat former imprisonment in another state as having the like effect as imprisonment in Massachusetts, to show that the man is an habitual criminal. The allegation of previous convictions is not a distinct charge of crimes, but is necessary to bring the case within the statute, and goes to the punishment only. The statute, imposing a punishment on none but future crimes, is not ex post facto. It affects alike all persons similarly situated, and therefore does not deprive anyone of the equal protection of the laws. Moore v. Missouri, 159 U.S. 673, 16 S.Ct. 179, 40 L.Ed. 301.' McDonald v. Commonwealth of Mass., 180 U.S. 311, 313, 21 S.Ct. 389, 390, 45 L.Ed. 542, 547."

In Williams v. State, 239 Ala. 296, 195 So. 213, the Court held:

"A life convict could suffer no punishment for first degree murder committed while such convict is serving such sentence if he were merely sentenced for life for that offense. Hence, this statute.

"It is further insisted this charge of being a life convict at the time when he is accused of murder in the first degree should not appear in the indictment to go to the jury, nor evidence in support thereof presented to the jury because of bias or prejudice aroused in the minds of the jury. It is suggested this matter should be brought to the attention of the court alone, and if found to be true, the jury be instructed to inflict the death penalty if found guilty of murder in the first degree. This suggestion should be addressed to the Legislature rather than the courts.

The burden is on the state to aver and prove the facts which bring the case within Section 4459, supra. The defendant is entitled to controvert them. For example he may show he was no longer a convict because of a previous pardon, or may question his identity with the person sentenced to life imprisonment.

That the facts in this regard should appear in the indictment, and the evidence of same submitted to the jury along with the other evidence is settled by our former decisions. Williams v. State, 130 Ala. 31, 30 So. 336; Johnson v. State, 183 Ala. 79, 63 So. 163; Bailey v. State, 211 Ala. 667, 101 So. 546."

In Williams v. State, 130 Ala. 31, 30 So. 336, in construing this same statute said:

"Objections were taken to the second count of the indictment by demurrer and motion, directed mainly to the averment: 'Who was then and there a convict sentenced to imprisonment for life for murder in the first degree in the criminal court of Jefferson county, to wit, the 18th day of March, 1899, and while said sentence was yet in force against him,' etc. The count is in conformity to the requirements of section 4859 of the Code, which provides that 'any convict sentenced to imprisonment for life, who commits murder in the first degree while such sentence remains in force against him, must, on conviction, suffer death.'

Nor is there any merit in the objection to the count involving the constitutionality of the section above quoted on account of its being class legislation. The punishment imposed by the statute is the only one that could be effectually inflicted. Any less degree of punishment would amount to no punishment at all. This is sufficient to maintain and justify the classification made by the statute. It is clear that the statute applies alike to all convicts, while under sentence to imprisonment for life, who commit murder in the first degree, whether the imprisonment is the result of a conviction for murder in the first degree or any other offense punished by imprisonment for life."

Of course these cases were decided before Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346. More will be said later in this opinion in the light of the Furman decision.

We turn now to a consideration of the evidence in this case.

On January 18, 1974, a riot broke out in the segregation unit at Atmore Prison. The unit contained approximately sixty-four inmates. All of the inmates were freed from their cells after Johnny Harris appellant, and inmate Oscar Johnson, overpowered the two guards in charge of feeding the evening meals. One of the guards was subsequently killed and the other seriously injured by the prisoners during their self-styled revolution. Appellant was one of five inmates charged with the murder of Prison Guard Luell Wheeler Barrow.

Warden Marion B. Harding testified that he was the Warden at Atmore Prison at the time the riot broke out. He stated he had been out looking for escaped prisoners on the afternoon of January 18, 1974, when he received word that a riot had begun in the segregation unit of the prison. He returned to the prison immediately and gave instructions to the prison officers as to what measures to take to subdue the rioting prisoners. The inmates had taken two guards hostage. Harding went down the hallway and stopped at a window to the unit. The window was blocked with cardboard, and he called for an inmate named George Dobbins. Dobbins came to the window and removed the cardboard to talk with Harding. Harding stated that at this time he could see into some parts of the segregation unit. Dobbins told the Warden that they were having a revolution, and that they were "going to kill some pigs today." On this first view the Warden stated that he saw inmates Frank Moore, Oscar Johnson and George Dobbins with knives, and that inmate Lincoln Heard had a club. At this time the Warden did not see appellant or the two captured guards. Harding said the inmates were talking loudly, and he asked them to be quiet so that he could talk to Oscar Johnson and George Dobbins. At this time inmate Lincoln Heard spoke and said:

"Listen we are all in this thing together and if you talk to one of us you talk to all of us, all of us are involved in this Revolution."

Dobbins informed the Warden that they wanted to talk to the Governor and other named individuals and gave him five minutes to produce them. The Warden told him that it was impossible to get these people in five minutes, and Dobbins stated that he knew this. Dobbins said they had already killed some inmates. Two inmates were dragged to the window on blankets, and, in the view of the Warden, appeared to be dead.

The Warden further testified that a guard, Arthur Dreadin, was brought up within view of the window and that appellant was beside him. He did not see a weapon in appellant's hands; he could not see appellant's hands at all. The window was then closed so that the Warden could not see into the unit. The inmates started taking Dreadin away, and the Warden went to another window in a door that looks into the lobby of the segregation unit....