Harrison v. State

• Decision Date: 01 February 1977
• Docket Number: 3 Div. 637
• Citation: 342 So.2d 429
• Parties: James HARRISON, alias v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 429

342 So.2d 429

James HARRISON, alias v. STATE.

3 Div. 637.

Court of Criminal Appeals of Alabama.

Feb. 1, 1977.

Charles Tom Payne, Montgomery, for appellant.

William J. Baxley, Atty. Gen. and David W. Clark, Asst. Atty. Gen., for the State, appellee.

L. S. MOORE, Retired Circuit Judge.

The appellant was convicted for murder in the first degree and the jury fixed his punishment at life imprisonment. Final judgment of conviction and sentence were entered by the trial court in accordance with the jury's verdict; hence this appeal.

Robbie Jane Harrison testified that she lived at 711 Alexander and that on July 3, 1974 she was living at 1870 B Gibbs Circle. She was divorced from appellant on December 12, 1973 and on July 3, 1974, lived with four of her children. Appellant did not have visitation rights at her house and she had not invited him there since the divorce. On the night of July 3, 1974 she was at home with a guest, John Malone, Jr. When appellant first came to her home, which was in her name, about 8:00 P.M. Robbie Harrison and Malone were on the front porch barbecuing. Appellant asked if her daughter was back from Atlanta and she told him that the daughter had not returned and that another daughter, Delois, was in the house. Appellant then left and came back about 9:00 P.M. and parked his car on the side of the street in front of the house. Robbie Harrison had not invited him to her home. Malone was still on the front porch with Robbie Harrison when appellant came to the porch but not on it. Appellant called Delois, but when she came to the door and asked what he wanted, he said, 'Nothing.' Appellant, who had planted some okra in the yard, told Malone to stop throwing cigarette butts in the garden. Robbie Harrison said to appellant; 'I know your are not talking to me. I live here, and you don't have any right to tell me what to do.' Malone then said to her; 'You guess he's talking to me?' but did not then get up out of his chair. Appellant replied; 'I guess I am' and stood near the porch awhile and then went down the walk-way with his gun at his side in a holster with his hand on it. Robbie Harrison turned around to put characoal on the grill and heard two shots. She turned back and Malone had his hands up and a gun in one of his hands. Malone then went to the left of the walk-way and shot at the appellant. Appellant ducked behind the car and shot back at Malone, who 'fell right beside the car.' Appellant then came from behind Robbie Harrison's son's car and stood over Malone. Malone did nothing and appellant shot him in the face two or three times.

On cross-examination this witness testified that when appellant left her home on the first occasion he said, 'I'll be back.'

Delois Jarret testified she lived at 711 Alexander Street and that on July 3, 1974 she lived at 1870 B Gibbs Circle with her mother, Robbie Harrison. Appellant was her father. She saw him and John Malone, Jr. at her mother's home about 9:00 P.M., July 3, 1974. Appellant asked for her but when she asked him what he wanted he said, 'nothing.' She then went back into the kitchen. Later there was some shooting and she came to the door and saw Malone on the ground. She then saw appellant come from behind the car on to the side where Malone was, stand over him, and start shooting. She was in the house when the shooting began and did not see who shot first. When she saw them, appellant was standing on the other side of the car and Malone was lying down on the side of the car nearest the house. She then saw appellant come back and shoot Malone.

Rayford Warren Latham, a Montgomery policeman, testified in substance that he arrived at 1870 B Gibbs Curve, the scene of the shooting, about 9:20 P.M., July 3, 1974. The place was in Montgomery County, Alabama. When he got there he saw appellant in the middle of the highway with a shotgun. Appellant handed Latham the weapon and stated he had done the shooting and had shot this fellow. The man that had been shot was lying in front of the house next to the curb. While Latham was there, Officer Frank Robertson, Detective Leola Davis and Detective Sidney Williams came to the scene. Latham arrested appellant who stated that he had been shot. He then went with appellant to the hospital where he was treated and released. Latham then carried appellant to the Detective Division of Police Headquarters. He gave the shotgun, the appellant handed him at the scene of the shooting, to Sidney Williams or Leola Davis.

Richard A. Roper, a State Toxicologist, whose qualifications were admitted, testified in substance that he performed a 'post mortem' on John Malone, Jr. on July 6, 1974. He found three wounds on the body. One of the wounds was in the middle of the face over the bridge of the nose, another was on the left side of the neck and the third was a ragged wound on the top of the head. They were pistol-type wounds. According to Roper death resulted from central nervous system trauma or brain injury and intracranial hemorrhage, bleeding inside the head, which resulted from the wounds. Roper stated he extracted a bullet from the body of John Malone, Jr. He then produced that bullet. Roper testified that the bullet was fired from a rifled weapon and that a pistol was such a weapon.

Sidney Williams, a detective, testified he went to 1870 B Gibbs Circle about 9:45 P.M., July 3, 1974. When he arrived appellant was in a patrol car and the deceased was lying on his back in the driveway. The deceased was identified to him as John Malone, Jr. Williams found a .32 caliber and a .22 caliber pistol there and Officer Latham gave him a shotgun. He found the .32 caliber pistol in a holster in plain view on the seat of appellant's car which was in front of the house. He found the .22 caliber pistol lying on the side of the car parked in the driveway next to the deceased's body. Appellant owned the .32 caliber pistol and the .22 caliber pistol was the property of the deceased man. About 11:00 P.M. that night the appellant gave Williams a written statement which was offered in evidence by the State. Counsel for appellant stated to the court: 'I join with the prosecution in asking that it be admitted in evidence.' Williams said appellant stated that he owned the .32 caliber pistol found in his car at the scene of the shooting and that he fired it seven or eight times.

Thereupon the State rested and the appellant moved to exclude the State's evidence on the ground the State had failed to make out a prima facie case. The court overruled the motion.

The appellant testified in substance that when he went to the scene of the shooting the first time his guns were in his car and that he did not get them out of the car. He also testified that on his second visit he left them in the car. According to appellant he was standing at the porch when Malone called him 'M--F' and started shooting at him. Appellant stated he started toward his car but before he got to it Malone shot him in the back. He said that, while he was going to the car and Malone was shooting at him, he was not trying to get away. He denied running but said he could run fast. However, he said he did not run fast.

We quote the following from the record of the cross-examination of appellant:

'Q Okay. Now, you say you didn't have your gun and you were going to your car to get your gun; is that correct?

'A Right.

'Q And all of this time, Mr. Malone was shooting at you?

'A He was shooting at me.

'Q And only hit you one time?

'A Maybe God planned for him not to hit me but one time.

'Q All right. Where was your gun in the car?

'A I had a gun in the glove compartment, and I had one in the trunk.

'Q Did you get the gun out of the glove compartment?

'A I really did.

'Q Okay. What kind of gun was it?

'A .32 automatic.

'Q .32 automatic?

'A Yes.

'Q Was it in a holster?

'A It was in a holster.

'MR. PRICE: Will you mark this, please? (Whereupon, the gun and holster just referred to was (sic) marked as State's Exhibit No. 7 for identification.)

'Q (By Mr. Price) Rev. Harrison, I show you what has been marked as State's Exhibit No. 7 and ask you to look at it, please.

'(Witness complies.)

'Q Is that your gun?

'A Sure, it's mine.

'Q Is that the one you got out of the glove compartment?

'A That's the one I got out of the glove compartment.

'Q Is that the one you killed Mr. Malone with?

'A Right.'

The appellant shot John Malone, Jr., July 3, 1974 and was arrested on that date and remained in jail having failed to make bail until April 16, 1975, when he was released on his own bond without sureties. The indictment was returned on November 6, 1974 and bail was fixed at that time at $5,000. by the court. The appellant was arraigned on November 12, 1974 and trial was set for December 12, 1974. On December 13, 1974, appellant filed a written motion to dismiss the cause for denial of a speedy trial and want of prosecution, alleging the case was continued without appellant's consent and that subpoenas for the State's witnesses, Robbie Harrison and Delois Harrison had been returned 'not found' on December 12, 1974. The record does not disclose any proof taken on said motion. The motion was denied by the court on December 13, 1974. The record does not contain an order of the court continuing the case on December 12, 1974, or December 13, 1974 and it does not contain an order resetting the case for trial. However, appellant filed a written motion on March 27, 1975 to dismiss the cause on the grounds: he had been in jail since July 3, 1974; that the case was set for trial December 12, 1974 and continued to December 13, 1974 and was continued to February term of court and again set for trial on March 25, 1975 and on that date continued to March 26, 1975 and was again continued on March 26, 1975; and that the appellant was ready for trial, and so announced on each of said dates but that the case was so continued without consultation with his counsel. The record on this appeal does...