Humphrey v. State, 3 Div. 846
| Decision Date | 01 May 1979 |
| Docket Number | 3 Div. 846 |
| Parties | Jimmy HUMPHREY v. STATE. |
| Court | Alabama Court of Criminal Appeals |
W. Mark Anderson, III and James R. Cooper, Jr., Montgomery, for appellant.
William J. Baxley, Atty. Gen., and Willis E. Isaac, Asst. Atty. Gen., for the State, appellee.
This is an appeal by an indigent from a conviction for assault with intent to murder, wherein the appellant was convicted by a Montgomery Circuit Court jury and sentenced to twenty years imprisonment.
This appeal is submitted to this court on briefs, and the pertinent facts are as follows:
Willie Moulton testified that he was the owner of the Moulton Cafe in Montgomery, Alabama, on the night of July 15, 1976. He stated that on the night in question there was a "juke box" and a "record hop" with door prizes. The prizes were two quarts of wine and one-half gallon of gin. As the patrons entered the cafe, they were handed a number and, later, three numbers were drawn to determine the winner. No one claimed the third number drawn, so another number was drawn and the holder was awarded the one-half gallon of gin.
After the gin was awarded, Moulton testified that the appellant came into the cafe and demanded the gin claiming that he held the first number drawn for it. After appellant was denied the prize, Moulton stated that the appellant cursed him and started a fight with him. According to Moulton the appellant then kicked him and threw a bottle at him. Moulton then got a pistol from behind the counter and fired a shot into the air.
Moulton testified that, when the appellant left the cafe, he shouted that he would be back and shoot someone. Moulton stated that the appellant left the cafe with some other people but, as they drove away, the appellant warned that he would return, and did not care "who I shoot when I get there." According to Moulton, the appellant was wearing an "old flopped down white hat and white shirt and pair of bluejeans."
About an hour later, Moulton was shot in the face, resulting in permanent blindness in both eyes.
Emma Durisseau testified that she was at the cafe on the evening in question and first recognized the appellant during the fight, when he kicked Moulton in the back. She explained that the appellant was arguing about a raffle ticket, and threw a bottle at Moulton, after which Moulton shot into the air. She stated that when the appellant rode away from the cafe in a car, he "screamed out he would be back and he would be ready to know who G d he shoot." She also stated that the appellant was wearing "a round white hat pulled down and jeans and a light-colored shirt." During cross-examination, Durisseau admitted that she noticed the appellant for the first time, on the night in question, but stated that she was sure he was the person who threw the bottle at Moulton. She also testified that when the appellant and the others left,
Minnie Williams testified that she was sitting with Willie Washington, on the hood of a car parked in front of the Moulton Cafe, when the shooting occurred. She stated that she first saw the appellant when he came around the corner of the building with a shotgun. According to Williams, she observed the appellant looking through the window of the cafe. When asked how long she observed the appellant looking through the window, she stated:
Further, she said that she had identified the appellant from five photographs, but admitted, during cross-examination, that the identification was made about a year after the shooting. She also admitted that she had not seen the defendant since the night in question, but did say, "I saw him when he fired that's when I fell."
Detective Billy Knighten, of the Montgomery Police Department, testified that he investigated the shooting at the Moulton Cafe and stated that he found a white cap near the side of the building, close to the door that leads to the kitchen.
Further, Knighten identified exhibits 11, 12 and 13, and stated that, on the inside of the Moulton Cafe, just left of the front door, he found a piece of wadding which had "come out of a four ten gauge shotgun." He also stated that he found a part of the wadding on the inside of the cafe near the window. Knighten said he found a part of the "birdshot" in the wall.
During the trial Clifford King, an investigator for the district attorney's office, identified certain photographs describing the scene at the Moulton Cafe.
After being recalled to the stand, he identified the shotgun, State's Exhibit 14, and stated that it had been brought to his office by the appellant's mother at his request. He explained that the shotgun was a "four hundred and ten gauge single shot."
Detective Leo Blankenship of the Montgomery Police Department stated that he did the "follow up" investigation of the shooting at the Moulton Cafe. According to Blankenship, he asked Minnie Williams to attend a photographic lineup, in which she positively identified the appellant.
The State Toxicologist, Thomas Hopen, testified that State's Exhibits 11, 12, 13 and 14 had been in his possession. He stated that these were; a "plastic collar," "paper wadding," and a "pellet," which were all "consistent with having been fired out of a fourteen gauge shotgun shell." However, he explained that the pellet could have been fired from any gauge shotgun. Further, he explained that, due to the fact that the shotgun was a "smooth bore weapon," there was no method to "make a comparison of anything fired through that barrel and say it had been definitely fired in that weapon."
Gussie Lee Humphrey, the defendant's mother, identified the shotgun, State's Exhibit 14, and stated that it came from her home. She denied that the appellant had taken it on the night in question, or that he had left the house again after he had arrived home. She testified that the gun had a broken stock and was in that condition at the time she had acquired it.
The appellant's sister, Ivory Pearl Humphrey, was living at the Humphrey home at the time of the shooting and confirmed her mother's testimony.
The appellant took the stand in his own behalf, and denied that he had kicked Moulton or thrown a bottle at him. He maintained that he left the cafe in the car and denied that anyone in the car had made any threats. The appellant stated that he did not return to the cafe and did not shoot Moulton.
The appellant contends that the shotgun, which belonged to the appellant's mother, should not have been introduced into evidence for three reasons; first, it was not properly identified as the weapon used in the assault; secondly, the chain of custody was not established; and finally, it was not relevant to the issues on trial.
Regarding the appellant's assertion that the shotgun introduced was not relevant nor properly identified, we find that the State offered the testimony of Minnie Williams to the effect that the appellant had a shotgun when he returned to the cafe. Further, Detective Knighten and the toxicologist stated that the wadding from State's Exhibit 11 was consistent with having been fired from a 410 shotgun.
The State toxicologist also testified that State's Exhibit 14, was a 410 shotgun, and that, although he stated that "the pellet (found at the scene) could have been fired from another gauge shotgun," he also stated that it could have been fired from the 410 shotgun.
The collar and the wadding, which were consistent with being fired from a 410 shotgun were found in the cafe after the shooting. There was also evidence that the defendant had access to a 410 shotgun. His mother, during her testimony, admitted that she had owned the 410 shotgun, admitted into evidence as State's Exhibit 14. We also note that Williams testified that she saw the appellant fire a shotgun into the cafe.
As stated in Corpus Juris Secundum:
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