Hurst v. State

• Decision Date: 12 November 1974
• Docket Number: 7 Div. 273
• Citation: 307 So.2d 62,54 Ala.App. 254
• Parties: Jimmy Ray HURST v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 62

307 So.2d 62

54 Ala.App. 254

Jimmy Ray HURST v. STATE.

7 Div. 273.

Court of Criminal Appeals of Alabama.

Nov. 12, 1974.

Rehearing Denied Dec. 17, 1974.

Bolton, Sizemore & Rumsey, Sylacauga, for appellant.

William J. Baxley, Atty. Gen., and Donald V. Watkins, Special Asst. Atty. Gen., for the State.

HARRIS, Judge.

Hurst was convicted of murder in the first degree and sentenced to life imprisonment. At arraignment and trial he was represented by employed counsel under a plea of not guilty. After conviction he was found to be indigent and he is in this Court with a free transcript. Trial counsel was appointed to represent him on appeal.

At the time of the homicide appellant was a Lieutenant on the Talladega Police Force. The killing occurred on the night of June 4, 1973, on a fire lane in a dense forest about five miles from the city limits of Talladega. Appellant was in charge of the Third Shift with hours from 10:00 P.M. to 6:00 A.M. but was taking his days off at the time of the killing. He was off duty on June 1, 2, 3, and 4.

There was one eye-witness to the murder, a woman of pleasure who was a thirty-year-old divorcee with three minor children under thirteen years of age. She will be referred to only by her first name, 'Beatrice'. She had been dating both the appellant and the deceased. She freely admitted having illicit sexual intercouse with both men and numerous other men also. Appellant was married but the deceased was divorced.

Beatrice and appellant's wife worked together as waitresses at a private club known as Point Aquarius, located on Logan Martin Lake. They were close friends. Appellant's wife was also dating the deceased and they frequently met at Beatrice's home. They were also seen together at other places by other witnesses. Beatrice knew the deceased carried a photograph of appellant's wife in his wallet. The deceased also carried a photograph of Beatrice and her three children in the same wallet.

The State Toxicologist who performed the autopsy on the deceased removed his wallet and itemized the contents. He found the above photographs and numerous other items including his social security plate bearing his name, a number of receipts in his name, $71.00 in cash, and other items not necessary to mention. The photographs of appellant's wife and Beatrice and her three children were introduced into evidence over the strenuous objections of appellant.

The toxicologist further testified that he removed nineteen (19) pellets from the chest region of the deceased, and they were number six (No. 6) shot. It was his opinion that death resulted from spinal cord trauma or injury, hemorrhage and shock associated with multiple shotgun wounds to the body. It was his opinion that he was shot three times at close range and that death was instantaneous. The body was in an advanced state of decomposition and the head and face were so mutilated as to be unrecognizable.

On Friday, June 1, 1973, appellant called Beatrice and asked her to spend the night with him in a mobile home in a trailer park that was leased to a fellow officer, who also was assigned to the Third Shift. He suggested that she bring her uniform or the clothes she was going to wear on her job the next day. Appellant told his wife that he had to work that night though this was the first of his four nights off duty and he wore his police uniform to deceive his wife. Beatrice drove to the trailer park and waited for appellant. Getral Smith, a police officer who often worked with appellant on the Third Shift, carried appellant to the trailer park in a patrol car, put him out and returned to duty. Appellant had the key to the mobile home and they went in and spent the night together. Appellant was picked up at 5:00 A.M. by Smith and then Beatrice dressed and went to her job at Point Aquarius.

Beatrice did not see appellant again until the following Sunday night though he called her constantly. On Sunday night he called her and asked her to ride around with him. They arranged a meeting place and they arrived in separate cars. Beatrice parked her car and got into appellant's 1964 white Cadillac automobile and they rode around until 11:00 P.M. He carried her back to her parked car and they parted. Appellant did not mention his wife and the deceased to Beatrice on Friday night when they slept together nor on Sunday while they were riding around for several hours.

The deceased made the fatal mistake of bragging about his liaison with appellant's wife and the gossip became rampant. Sometimes it is said that the injured spouse is the last to know but when the gossip becomes wide-spread it is inevitable that the wronged party will pick up the idle rumor circulating in the neighborhood. When appellant learned of his wife's infidelity, he decided to avenge his wounded honor and his wife's name. It surpasses all understanding why appellant was so shocked upon learning that his wife was having a love affair when by his own admission he was guilty of moral degeneracy and had a perverted regard for his own marital status. It may be that the profligate still wants his wife to remain pure even though he continues to be a bounder and libertine.

Beatrice went to work at Point Aquarius on Monday morning, June 4th, 1973. She got off work at five o'clock and was back in Talladega at five-thirty o'clock. She did not go home but went to the Eleventh Frame Night Club to drink beer for about two hours. The deceased was there when she arrived and was still there when she left. While she was at the club, appellant called her and said he wanted to see her and asked her when she was leaving. She told him she was leaving then but she had to go home and carry her children to the ball park. She carried them to a baseball game at the park and left them. When she left the ball park, she drove down South Street and saw appellant at a red light. She turned and headed out the Ashland Highway and turned off on a dirt road that led to an abandoned dump road towards the Stockdale Community. Appellant followed her in his Cadillac. She went on this dirt road for about three miles and stopped. Appellant pulled up behind her. Beatrice had been to this spot many times before as it was one of her favorite trysting places and she had been here several times with appellant and also with the deceased. Appellant got a six-pack of beer from the trunk of his car and he drank four beers and she consumed two.

While they were parked appellant told Beatrice that he had heard that the deceased was having a love affair with his wife; that the deceased was telling everyone about the affair and was laughing about it and appellant said he wanted to know the truth about it. He told her that he wanted to talk to the deceased and let him convince appellant that he had not been going with his wife or make him tell what he had been telling everybody else in town. He further said that he wanted the little _ _ to stop laughing at him like he had been laughing at everybody else in town. Appellant asked Beatrice to drive back to the Eleventh Frame Night Club and bring the deceased to him. He told her to bring him to the appointed place hereinabove described. Beatrice did not have the slightest idea that she was to serve as a decoy in an ambush murder case, so she agreed to bring the deceased to appellant in the deep forest.

Beatrice returned to the night club in Talladega and found the deceased. She did not get to have a conversation with the deceased at that time as another one of her lovers was present and was insisting that he spend the night with her in her home that night. She told him that he could not stay with her that night and left the club. She went home and called the deceased on the telephone and asked him to meet her below the Talladega Motel. She drove to the appointed place and he arrived in five minutes in his blue pickup truck. She told him to follow her and he did. She drove to the place pre-arranged with appellant. As she was driving on this dirt road her headlights picked up appellant's white Cadillac parked in a secluded place off the main dirt road with the lights off. She immediately braked her automobile and stopped just past the Cadillac with her lights on bright. She did not see appellant. Just as her car came to a stop, she heard the deceased change gears and start backing rapidly. Then she heard appellant cry out, 'Stop your _ _ stop.' Immediately she heard three shotgun blasts in rapid succession and then two more. She got out of her car and started running back to the truck to see about the man she unwittingly led into a trap. As she got near the hood of the truck appellant walked around the truck and intercepted her, and told her to get in her car and get the hell out from there. She told him she wanted to see the deceased and appellant said, 'You can't, I've shot his damned face off.' She saw the shotgun in his hand.

Appellant told Beatrice to go home and keep her mouth shut; that if she told anyone both of them would get fifty years. She told him she could not leave as the truck was blocking her way. He told her he would move the truck. He walked to his Cadillac, opened a door and threw his shotgun in his car. He told her to wait for him and got in the truck and backed it down the road out of her sight. He walked back to the scene of the shooting and asked her if she had a flashlight as he wanted to pick up the spent shells he used in killing the deceased. She told him she did not have a flashlight and he asked her to drive him back to town so that he could get one. On the way to town she ran out of gas not too far from her home and parked on the side of the highway. On the way back to town she asked him why he did it and he said he was not sorry.

Appellant told Beatrice that he was going to a telephone and call police officer Getral Smith to bring them a can of gasoline and he left her in her car and she saw him walking in the direction of her...