Jones v. State, 4 Div. 747

• Decision Date: 25 February 1954
• Docket Number: 4 Div. 747
• Citation: 70 So.2d 629,260 Ala. 341
• Parties: JONES et al. v. STATE.
• Court: Alabama Supreme Court

Page 629

70 So.2d 629

260 Ala. 341

JONES et al. v. STATE.

4 Div. 747.

Supreme Court of Alabama.

Feb. 25, 1954.

V. Cecil Curtis, W. R. Belcher, Bowen Brassell and Roy H. Phillips, Phenix City, for appellants.

Si Garrett, Atty. Gen., Robt. Straub, Asst. Atty. Gen., Owen Bridges, of counsel, for the State.

The following charges were refused to defendants:

'1. I charge you, Gentleman of the Jury, if you believe beyond a reasonable doubt that the deceased came to her death by the burning of her body by the defendants, and the shots fired by the defendants or defendant did not hasten the death of the deceased, then in such event you cannot convict the defendants.

'5. I charge you, Gentlemen of the Jury, that the indictment against the defendants is not evidence of their guilt.'

MERRILL, Justice.

Albert Lee Jones and Arthur Lee Grimes were jointly indicted for the crime of murder in the first degree. The indictment charged that these two defendants 'unlawfully, and with malice aforethought, killed Mrs. Mattie V. Pearce, by shooting her with a gun or pistol.' They were placed on trial and found guilty as charged and sentenced to death in the electric chair. A motion for a new trial was denied and the appellants now prosecute an appeal to this court under the automatic appeal statute. Code of 1940, Title 15, § 382(1) et seq.

The appellants were living or staying together in November 1952 and they planned to burglarize the home of Mr. D. W. Pearce and Mrs. Mattie Pearce at Fort Mitchell in Russell County, which was adjacent to their store. They watched the home for a time on the 24th but the Pearces did not leave and they decided not to carry out the project that day. The next day, November 25, 1952, they left their place of abode about four o'clock p. m. and walked along the road toward the Pearce Home and Store. Defendant Grimes was armed with a .38 calibre revolver. On their way they helped an acquaintance, Florence Shirley, cut some wood and about dark they reached a point where they could watch the Pearce premises. One of the appellants went to the store and purchased two boxes of matches in order to ascertain who was in the store. They waited in concealment and saw Mr. and Mrs. Pearce leave the store and drive toward Phenix City. They then went to the Pearce dwelling and forced an entry. After searching the house they discovered no money, but defendant Jones appropriated a .38 calibre revolver and defendant Grimes got a flashlight. They waited in a closet in a front bedroom until the Pearces returned. Mrs. Peace came in the house first, Mr. Pearce staying in the car with the lights on until she had entered. Both Mr. and Mrs. Pearce came through the front part of the house and went back into the kitchen. Mrs. Pearce came back to the living room and made two telephone calls, one of them to her daughter. While she was making the telephone calls, the appellants moved out of the closet, and were standing in the room so that when Mrs. Pearce came into the room she saw them.

She screamed, turned, went out of the room and almost immediately reentered the room, whereupon the defendant Jones shot her. Mr. Pearce ran to the aid of Mrs. Pearce and was shot twice by defendant Grimes. The evidence of Dr. Sowell, a State Toxicologist, indicates that both Mr. and Mrs. Pearce died from the wounds received when they were shot.

The appellants searched Mr. Pearce and failing to find any money, they took his car keys and found a money sack containing about $70 and a flashlight in the glove compartment of the car. They went back into the house and pulled some 'window curtains' around the bodies and set fire to them. The first failed to burn properly and they secured some Diesel fluid from a 'county shop' nearby and poured this on the flames. The first spread to the house, which burned to its foundation before the bodies of Mr. and Mrs. Pearce were removed.

They went from there to the home of Fannie Mae Butler and while en route, discarded the two flashlights, a set of keys and washed the blood off their shoes. After drinking some whiskey at the Butler home, Amzi Griggs drove them to the home of Lucinda Lockhart, who lived near Uchee Creek. They arrived there about midnight and they stayed until eight o'clock the next morning. Defendant Grimes left one of the pistols in a drawer at this home. After leaving Lucinda's they divided the money and went to Columbus, Georgia, where they sold the pistol taken from the home of the Pearces.

The defendants did not offer any testimony and the case went to the jury when the state rested.

The appellants' first contention is that the court erred in that 'at the commencement of the trial of these defendants, their counsel moved a continuance on the grounds that there were only forty-seven jurors to strike from for the trial of this case.' The record affirmatively shows as follows: 'It is further ordered that the venire of jurors for the trial of this case shall be 100 in number, the same consisting of 90 drawn as regular jurors for the week of this court beginning Monday, April 27, 1953, together with an added number of 10 drawn in open court by the presiding judge in the presence of the defendant.' The defendants were entitled to select a jury from a list containing the names of at least thirty competent jurors. Code of 1940, Title 30, § 65; Emmons v. State, 253 Ala. 216, 44 So.2d 788; Hardwick v. State, 26 Ala.App. 536, 164 So. 107; Lewis v. State, 22 Ala.App. 108, 113 So. 88. The court did not err in overruling the motion for a continuance.

Appellants next complain of the trial court's refusal to give written charges 1 and 5. Charge 1 could have been refused because it was not rested on belief from the evidence, Wesson v. State, 251 Ala. 33, 36 So.2d 361, or that it was abstract, Jackson v. State, 18 Ala.App. 627, 93 So. 258, or because it was not within the issues and was not supported by the evidence. 6A Ala.Digest 547, Criminal Law, k814(1). According to the undisputed testimony of Dr. Sowell, a State Toxicologist, the deceased died as a result of a bullet wound and 'the fire played no part in the death of this body.' Charge 1 was properly refused.

Requested charge 5 could very properly have been given since it was not covered in the oral charge. The same question was presented in the case of Collins v State, 21 Ala.App. 152, 106 So. 341, 343, with regard to charge 4, which was identical in effect with charge 5 in the case at bar. There the Court of Appeals said:

'We can see no reason why the court refused charge 4 requested in writing by defendant. Prater v. State, 193 Ala. 40, 69 So. 539. However, we do not regard its refusal in this case as being hurtful to the substantial rights of defendant. In the first place, there was no contention or insistence that the indictment should be regarded as evidence against defendant, nor was there any suggestion or intimation in argument or otherwise that it should be so regarded or considered. For this reason the charge related to a matter which might be termed wholly abstract. * * * The evidence was ample to justify the verdict without resort by the jury to the indictment as evidence. While, as stated, the court should have given the charge, the refusal to do so does not constitute reversible error, and we will not predicate a reversal of this judgment thereon. Code 1923, § 3258; rule 45, 175 Ala....