Jacobs v. State

• Decision Date: 26 July 1977
• Docket Number: 6 Div. 389
• Citation: 361 So.2d 607
• Parties: Jerry Wayne JACOBS v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 607

361 So.2d 607

Jerry Wayne JACOBS v. STATE.

6 Div. 389.

Court of Criminal Appeals of Alabama.

July 26, 1977.

Rehearing Denied Aug. 16, 1977.

Morris S. Dees, Jr., Pamela S. Horowitz and John L. Carroll, Montgomery, for appellant.

William J. Baxley, Atty. Gen., and James S. Ward, Asst. Atty. Gen., for the State.

HARRIS, Judge.

Appellant, Jerry Wayne Jacobs, and his brother, John L. Jacobs, were tried and convicted of murder under Alabama's new Death Penalty Act committed during the course of the robbery of a seventy-nine year old man. They had separate jury trials and the jury in each case fixed punishment at death.

Alabama's new Death Penalty Act, (Act No. 213, Acts of Alabama 1975, page 701, now Title 15, Sections 342(3)-342(11), Code of Alabama 1940, Supplement), was enacted into law by the Legislature in response to the decision of the Supreme Court of the United States in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346. See Appendix. Both appellants raised the constitutionality of Alabama's new Death Penalty Act under the Eighth and Fourteenth Amendments to the Constitution of the United States.

For a clearer understanding of the constitutional issues presented we feel that the facts should be summarized in each case in separate opinions though, of necessity, there will be some overlapping and duplication. The constitutional issue will be treated in the Jerry Wayne Jacobs's case and adopted by reference in the John L. Jacobs's case.

The facts in the instant case reveal that the deceased, Walter Knight, was a retired Mrs. Knight testified that on the morning of July 17, 1976, her husband left home at the usual time. Before leaving he gave her $1,000.00 in cash and this was the last time she saw her husband alive. She stated when he left home that morning he was wearing a brownish or grayish looking pair of pants, a tan shirt with a few little stripes, a light brown straw hat with a cloth band and he had on socks and brown Hush Puppies shoes. When her husband did not return home on the evening of July 17, 1976, Mrs. Knight contacted the authorities and reported that her husband was missing. She further testified that the authorities searched for her husband eleven days before his body was found.

seventy-nine year old man who lived with his wife in Cullman, Cullman County, Alabama, on July 17, 1976. He was in good health and was fairly active for a man of his age. It was his daily routine to walk to the city of Cullman in the morning and spend the day with friends and walk back home before dark each afternoon, the round trip being approximately two miles. Mr. Knight made his headquarters at the Star Billiard Parlor in Cullman where he played pool and poker. It was generally known that Mr. Knight carried a "good bit" of money with him at all times.

The actors in this stark drama resulting in the death of Mr. Knight were Jerry Wayne Jacobs, John L. Jacobs and Thomas Eugene Brown. Jerry Wayne Jacobs lived in Winter Haven, Florida. John L. Jacobs lived in and around Cullman. Thomas Eugene Brown, a nineteen year old youth and the nephew of John L. Jacobs by marriage, lived with his mother at Brighton, Alabama, a small community near Bessemer, Jefferson County, Alabama. Of this trio only John L. Jacobs knew Mr. Walter Knight and had often seen him in the Star Billiard Parlor.

There was testimony from two employees of the Star Billiard Parlor and they testified that Mr. Knight carried large sums of money on his person and that he had a reputation of carrying large sums of money all the time. One of these men stated that he had seen Jerry Wayne Jacobs and John L. Jacobs in the poolroom a few days before Mr. Knight was reported missing.

Thomas Eugene Brown testified that he was with the Jacobs brothers on Thursday and Friday prior to Saturday, July 17, 1976, and they visited several people in Cullman County during this period of time. He said that they were together on Saturday and parked in a parking lot just opposite the Star Billiard Parlor and saw Mr. Knight in the poolroom talking to some man. They were in a 1974 black and white Mercury Marquis automobile and John L. Jacobs was driving this car. Jerry Wayne Jacobs was in front sitting on the passenger side, and Brown was sitting in the back seat. They sat in the automobile at this vantage point for about an hour waiting for Mr. Knight to start his trip home. At this time according to Brown he had about $74.00 on him, John L. had around $15.00 to $20.00, and he did not know whether or not Jerry Wayne had any money. Just before parking in front of the poolroom John L. Jacobs had driven them by Mr. Knight's to show them where he lived.

Brown further testified that finally Mr. Knight emerged from the Star Billiard Parlor and walked down the street to another pool hall and John L. Jacobs drove in that direction to keep Mr. Knight under surveillance. This poolroom was closed and they observed Mr. Knight walk back to the Star Billiard Parlor and John L. then drove back to the parking lot in front of the Star Billiard Parlor to wait for Mr. Knight to come out again and start his trip home. While they were parked this second time, Jerry Wayne told John L., "We're going to get the money today." Brown stated that neither he nor John L. had a weapon but Jerry Wayne had a .22 caliber sawed-off rifle and that Jerry Wayne brought this rifle with him from Florida. Jerry Wayne Jacobs had sawed off the stock and a part of the barrel of the rifle and thus converted it into a handgun which would fire only one time and would have to be reloaded before it would fire again. Jerry Wayne put this weapon under the front seat of the car on Finally, around five o'clock p. m. Mr. Knight came out of the poolroom and started walking toward his home. John L. cranked the automobile and started following Mr. Knight. John L. told Jerry Wayne that Mr. Knight liked to play poker, and Jerry Wayne said, "Well, let's get him in a card game." John L. overtook Mr. Knight and stopped the car and told Mr. Knight they would carry him home. Mr. Knight got in the back seat of the automobile and John L. said, "Let's go play some poker Mr. Knight," and Mr. Knight replied, "Okay." John L. Jacobs started driving toward Mr. Knight's home and then suddenly turned the car to the left and headed towards Blount County. When they started towards Blount County Jerry Wayne Jacobs turned around and pointed the sawed-off rifle at Mr. Knight and told him, "I'll blow your damn head off it you make a move." At this point Brown stated that Jerry Wayne looked directly at him and stated, "I'll kill you, too, if you say anything."

the passenger side. While they were waiting for Mr. Knight to come out of the poolroom, Jerry Wayne told his brother and Brown that if they said anything he would kill both of them. According to Brown, John L. told Jerry Wayne that Mr. Knight "usually carried two to three thousand dollars with him."

Brown further testified that when John L. Jacobs started driving toward Blount County, he heard a "click" and knew that John L. had pushed the automatic door lock which locked all doors to the automobile. As they approached a town named Garden City, Alabama, Jerry Wayne leaned over the back seat and with the weapon still pointed at Mr. Knight, Jerry Wayne took Mr. Knight's wallet from his pocket and also took a deck of playing cards, a glasses case, a pistol permit, some candidate cards, Mr. Knight's Social Security card, and other items from the person of Mr. Knight. He ordered Mr. Knight to take off his shoes and give them to him. After Mr. Knight gave Jerry Wayne his shoes Jerry Wayne pointed the weapon at Mr. Knight and told him to keep quiet and keep his hands in his lap.

According to Brown they kept traveling and eventually got near Country Boy Eddie's place where they made a left turn and got on Old Highway 31 which had been abandoned and which was about a half mile from a bridge in Blount County. At this point Jerry Wayne Jacobs told John L. Jacobs to stop the car and he then ordered all occupants to get out of the car. Everyone got out of the car except Brown who stated that his back was hurting from an old injury. When John L. got out he took the car keys with him. Brown stated that Jerry Wayne Jacobs had the weapon in his left hand and he grabbed Mr. Knight by his left arm and carried him into the woods near the old abandoned highway. About two or three minutes later he heard Mr. Knight yell out, "Please, don't do it." Brown said that Jerry Wayne Jacobs carried Mr. Knight into the woods out of his sight and shortly thereafter he heard gunfire three times. He stated that John L. Jacobs was in Brown's sight when he heard the three shots. Soon after hearing the gunshots, Brown saw Jerry Wayne come out of the woods with the weapon and he was wiping blood off his hands. Brown further stated that the items of personal property which Jerry Wayne had taken from Mr. Knight were on the front floorboard of the car.

Brown further testified that when Jerry Wayne Jacobs got back in the car he looked at him and John L. Jacobs and told them he would kill them if they said anything about what had happened. Brown stated that when appellant came out of the woods and returned to the car he was wearing white slippers and they were wet; that Jerry Wayne wore these white slippers until they traveled almost to the bridge at which point he put the white slippers in a sack with some of the other items he had taken from Mr. Knight and threw the sack out of the car by a viaduct near a super highway. In the sack with the white slippers were a bread sack, a jar of mayonnaise and the cards of a candidate for a political office on the Cullman City Council.

Brown continued to testify that they then went to his home in Brighton, Alabama This trio left Brighton the evening of July 17, 1976, and took Jerry Wayne Jacobs's wife to the Greyhound Bus Station in Birmingham to go to...