Lakey v. State

Decision Date03 June 1924
Docket Number7 Div. 977.
Citation20 Ala.App. 78,101 So. 537
PartiesLAKEY v. STATE.
CourtAlabama Court of Appeals

Rehearing Denied June 17, 1924.

Appeal from Circuit Court, Clay County; George F. Smoot, Judge.

Northern Lakey was convicted of manslaughter in the first degree, and he appeals. Affirmed.

The refusal of requested instructions covered by those given held not error.

The verdict of the jury was:

"We the jury, find the defendant guilty of manslaughter in the first degree, and fix his punishment at imprisonment for one year in the penitentiary."

The following charges were refused to the defendant:

"CC. The court charges the jury that you may in determining whether the four men went to Lakey's house on a peaceful mission, and not intending to search Lakey's premises unless they could and should obtain the voluntary consent of Lakey, you may look to the fact that they went to Lakey's house in the nighttime armed with guns and pistols without a search warrant at a time when even a search warrant cannot be executed, unless supported by an affidavit positively stating that the property sought is on the person or at the place to be searched, and an indorsement made on the search warrant by the justice of the peace or other person issuing same that it is to be executed or that it may be executed in the night-time."
"K. The court charges the jury that there is no evidence in this case that there was any whisky found on the defendant's premises, and the mere fact, if it be a fact, that Ramsey said, 'Here is a little,' is not sufficient to warrant you in reaching the conclusion that whisky was found in defendant's barn."
"X. The court charges the jury that the mere fact, if it be a fact, that Ramsey handed Hamlin a bottle of whisky and said, 'Here is a little,' is not sufficient to raise a presumption that Ramsey found liquor in the barn of the defendant, and if you believe the evidence in this case you would not be authorized to infer that there was any liquor found on the defendant's premises."
"7. The court charges the jury that, if Lakey did not voluntarily give his consent for the officers to search his barn, they were trespassers in so doing and at fault in bringing on the difficulty"
"6. The court charges the jury that if you believe the evidence in this case you are not authorized to find that Lakey voluntarily agreed or gave his consent for the officers to search his barn."
"17. The court charges the jury that if you have a reasonable doubt from all the evidence in this cause as to whether or not Lakey voluntarily gave his consent for the officers to search the barn, you should find him not guilty."
"16. The court charges the jury that if any of the officers used abusive or insulting or profane language directed to Lakey he could reply to them with like language without being at fault in so doing."
"3. The court charges the jury that if Stanford was not invited by the defendant's wife to go into the defendant's house he was a trespasser when he did go in."

Charges 2 and G are in substance the same as charge 9 treated in Lakey v. State, 18 Ala. App. 442, 93 So. 51.

"XX. The court charges the jury that the burden is on the state to show by the evidence in this cause that the officers making the raid or search of Lakey's premises were not at fault in bringing on the difficulty which resulted in the fatal shooting at Lakey's home."

Charge BB is in substance the same as charge CC above.

"I. The court charges the jury that the defendant is clothed with the presumption of innocence, and this presumption goes with him until it has been proven to you beyond all reasonable doubt that he is guilty, and until each member of the jury is satisfied from the evidence in this case beyond all reasonable doubt of the defendant's guilt, it is your duty to acquit him."

L. H. Ellis, of Columbiana, for appellant.

Harwell G. Davis, Atty. Gen., and Lamar Field, Asst. Atty. Gen., for the State.

BRICKEN P.J.

This defendant was originally indicted for murder in the first degree, and the first trial of this case resulted in a conviction of murder in the second degree and a sentence to 40 years imprisonment in the penitentiary. On appeal from said judgment the Supreme Court of this state reversed same and remanded the cause. Lakey v. State, 206 Ala. 180, 89 So. 605.

Upon the second trial in the court below the state confessed the defendant's plea of autrefois acquit as to murder in the first degree, and he was put upon trial for the lesser offenses comprehended and included in the indictment. He was again convicted of the offense of murder in the second degree, and his punishment fixed at 17 years in the penitentiary. On appeal from that judgment this court adjudged a reversal. 18 Ala. App. 442, 93 So. 51. He was again tried in the court below on March 26, 1923, which trial resulted in his conviction for manslaughter in the first degree, the jury fixing his punishment at one year imprisonment in the penitentiary. The court received the verdict and properly sentenced the defendant to one year hard labor for the county and for an additional period of time of 10 months to pay the cost. That portion of the verdict of the jury designating the place of punishment was properly treated by the court as surplusage, the place of punishment being provided by section 7620 of the Code 1907 under the terms of which the prisoner was properly sentenced. From this judgment he appeals.

No briefs have been filed for appellant, but, as the law requires, we have examined the record for apparent errors and have considered all questions reserved by the bill of exceptions. Code 1907, § 6264.

The testimony offered by the state, briefly stated, tended to show that Sheriff Hamlin and his deputy, Ramsey, the deceased named in the indictment and who the state insists was killed by the defendant, which is the basis of this prosecution, together with two federal prohibition officers, went to the home of the defendant somewhere about midnight on the night of July 2, 1920; that they found the barn was locked, this being the place that they desired to search, and that thereupon they went to the house of the defendant stating to him that they had been informed that he had whisky on his premises, and that they wished to make a search thereof; that he voluntarily consented, got up, got his keys, and went and opened the barn for them; that after they had searched for some little time, the deceased (Ramsey) found a bottle containing whisky in a certain part of the barn; and that when this whisky was found the defendant became suddenly enraged because of it, began to curse the four officers, and without any overt act on the part of the deceased or any other officer, fired at the deceased three times, the deceased firing at the defendant once and the other officers firing at him subsequently, but the defendant escaped without injury.

The defendant's version of the affair was, and his testimony tended to show, that the officers put the defendant under duress, and that when he was told by the officers that they wanted to search the barn, he unlocked the door, no showing of force being apparent on the testimony other than inferentially; that after they got to the barn the deceased flashed a light in defendant's face, was advancing on him with a pistol after the party had been cursing him for some time; and that he fired in self-defense. The defendant's testimony also had a tendency to show that the officers had been drinking at the home of one Gordon, who had been raided during the early part of the night, but all of the officers denied that any of them were drinking on the night of the tragedy.

State witness Allen, a federal prohibition officer, while testifying on direct examination, stated that the officers told the defendant they had information that he had whisky stored in his barn. The defendant moved to exclude this statement. In the first place, it does not appear what the question was which elicited the statement, and that objection was interposed before the question was answered. The statement, however, referred to the res gestæ, this court having held on the previous appeal (18 Ala. App. 442, 93 So 51 [3]), that anything said or done during the search tending to explain...

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