Lackey v. State, 8 Div. 668

• Decision Date: 30 June 1960
• Docket Number: 8 Div. 668
• Citation: 41 Ala.App. 46,123 So.2d 186
• Parties: Luther LACKEY v. STATE.
• Court: Alabama Court of Appeals

Page 186

123 So.2d 186

41 Ala.App. 46

Luther LACKEY v. STATE.

8 Div. 668.

Court of Appeals of Alabama.

June 30, 1960.

Rehearing Denied Aug. 16, 1960.

Pilcher & Floyd, Gadsden, for appellant.

MacDonald Gallion, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State.

PRICE, Judge.

The appellant was indicted for and convicted of assault with intent to murder.

The evidence presented by the state tended to show that defendant and Jesse Lackey, the alleged assaulted party, were brothers. Jesse Lackey had died before the date of trial.

It was the theory of the state that ill feeling existed between defendant and Jesse Lackey on account of the provisions of the last will and testament of their late father. Defendant testified he had unsuccessfully contested his father's will.

Mrs. Mae Lackey testified her husband, Jesse Lackey, was operating a mercantile establishment in Boaz, Alabama, on November 22, 1958, and that she worked in the store. When she and her husband returned to the store after lunch the defendant was standing at a counter near the cash register toward the front of the store; that as they started in the store defendant turned and walked toward the back of the building, and called to Jesse to come back there. Jesse and Luther entered into a conversation and Jesse told Luther to go home, as he was drinking; that witness started to where they were standing and she saw her husband and the defendant struggling over a .22 caliber rifle. The gun, which Luther was holding, was pointed toward Jesse, and Jesse was pushing the gun barrel upward; that the gun fired while it was in that position. After the gun fired witness helped her husband hold defendant until a policeman came and arrested him.

Roxie and Zone Thomas, employees of the Lackey store, testified that when defendant first came into the store he had an argument with Roxie Thomas concerning his father's will. Both of these witnesses testified the gun fired while Jesse and Luther were wrestling over it between the shoe cabinet and the back of the store, and that Jesse was pushing the barrel upward at the time it fired.

T. A. Hammock, a police officer for the town of Boaz, testified he arrested defendant and as he was taking him to jail defendant stated he went to the store to kill his brother, and 'said he was going to kill him and said if he got out that evening or any time that he was going to kill him. any time that he was going to kill him. It wasn't intended for him to live and to mother had left for them. It wasn't right for Mr. Jesse to take it away from them.'

The next day this witness and other officers found a bullet in the heel of a new shoe in a rack five feet above the floor some six feet from where he saw Jesse holding Luther down.

L. P. Dickson, Sheriff of Marshall County, testified that on the day following the altercation he saw a slug from a .22 caliber rifle lodged in the heel of a new shoe which was in a box.

Defendant, testifying in his own behalf, stated he went to the store at his brother's request. He gave as his reason for having his rifle that he had an engagement to go hunting with one Freeman White. When he entered the store he placed the gun near the heater, 30 feet from the back of the store. He walked to the front, talked briefly with Roxie Thomas, and learning that Jesse was out, started to the back for his gun; that as he picked up the gun Jesse grabbed him from behind and pushed him toward the counter and Mae came up and took hold of his hands. While Jesse and Mae were holding him someone called the officers. Defendant denied that he told the policeman, or anyone else, that he went to the store with the intention of killing Jesse. He further testified that the gun did not go off during the struggle.

Freeman White testified he had made a date with defendant to go hunting that afternoon, and that he had asked defendant to bring his gun and meet him at a service station near the store.

The evidence presented questions for the determination of the jury, and was sufficient, if believed to the required degree, to support the verdict. There was no error in the court's refusal of the requested affirmative charge, nor in the denial of the motion for a new trial on the ground of the insufficiency of the evidence to sustain the conviction.

It is insisted by defendant that the action of the trial court in refusing the motion for a new trial on the ground of newly discovered evidence constituted reversible error. The evidence offered consisted of affidavits made by Virginia Prichett and her mother, Mattie Nail. Both witnesses stated they were in the store at the time of the difficulty between Luther and Jesse Lackey, Virginia Pritchett swore that defendant called to Jesse from the back of the store, saying: 'Come here, I want to talk with you.' Jesse Lackey and his wife walked to where the defendant was standing near the stove and entered into conversation with him. The pertinent portions of her deposition are as follows: 'Shortly thereafter Luther picked up the gun by the side of the show case and I never saw him point the gun at anyone. The gun was pointed up and toward the front. Luther turned around and Jesse Lackey grabbed Luther from behind and around the neck before the gun fired. I believe the gun fired after Jesse Lackey grabbed Luther. I do know that the gun was up and pointed toward the front of the store when it fired. It was not pointed at anyone.' She further stated that the scuffle took place between the shoe racks and the front of the store and the gun fired toward the front, and not back toward the shoe racks.

In her affidavit Mrs. Mattie Nail stated she was talking with Mrs. Roxie Thomas at the front of...