Lakey v. State

• Decision Date: 09 June 1921
• Docket Number: 7 Div. 193
• Citation: 206 Ala. 180,89 So. 605
• Parties: LAKEY v. STATE.
• Court: Alabama Supreme Court

89 So. 605

206 Ala. 180

LAKEY v. STATE.

7 Div. 193

Supreme Court of Alabama

June 9, 1921

Appeal from Circuit Court, Clay County; W.L. Longshore, Judge.

Northern Lakey was indicted for murder in the first degree for killing J.D. Ramsey by shooting him with a pistol, was convicted of murder in the second degree, and appeals. Reversed and remanded.

Riddle & Riddle, of Talladega, for appellant.

Harwell G. Davis, Atty. Gen., and Lackey, Pruitt & Glass, of Ashland for the State.

SAYRE J.

Defendant was convicted of murder in the second degree and sentenced to the penitentiary for 40 years. Many exceptions were reserved at the trial. We find it necessary to notice a few of them only.

After midnight of July 2-3, 1920, deceased, Ramsey, a deputy sheriff, with Hamlin, the sheriff, and Stanford and Allen federal prohibition enforcement officers, went to the home of defendant, aroused him from his bed, and announced their purpose to search his barn for liquor. These officers had no warrant for their search, but the evidence was in conflict whether defendant demanded to know whether they had a warrant; testimony for defendant tending to show that he asked whether they had a warrant and that he was assured by one of the federal officers that they needed none. It was not denied, however, that defendant went across the road with the officers--three of them--and unlocked the door of the barn they wished to search. It was disputed whether any liquor was found. Defendant stood at the door of the barn. After the search had gone on for some time, many shots were fired and Officer Ramsey received a wound, of which he shortly died. The evidence was in conflict as to who started the shooting and who was immediately in fault in bringing it on.

Defendant contends that the officers--acting in concert, of course--were trespassers in going upon the front porch of his house at the time and under the circumstances stated, and holds that the court on his request should have so instructed the jury. But if the officers went upon the front porch of defendant's house in a peaceable manner, and with lawful purpose--that is, not intending to search his barn without a warrant, if he objected--it cannot be said that they were trespassers.

While the other officers were on the front porch, Stanford went to the rear of the house, entered there, and began a search in the cook room, where defendant's wife was in her nightgown. If this officer entered upon the wife's invitation, as he swore he did, it cannot be said that he was a trespasser. But if he commanded defendant's wife to open the door, and thereupon entered and began a search under the conditions stated by the wife, he was a trespasser, and defendant was entitled to have the jury consider that fact in fixing the degree of his guilt, in the event his plea of self-defense did not prevail--as giving color and character to the provocation defendant may have had at the barn, though he may not on that account have been excused on the ground of self-defense. The evidence as to those things was in conflict, and there was, for that reason, no error in the court's refusal of the charges in which the defendant requested the court to instruct the jury that in making these entries at the front and rear of defendant's house the officers were trespassers.

Mrs Gordon was sworn as a witness for the defendant. The effect of her testimony was that on the night of the killing, shortly before midnight, the officers to whom we have referred were at her house, several miles away from the place of defendant's residence, where they conducted a search and found whisky. She testified that the officers drank of the whisky they found, and there was evidence tending to show that they were under that influence when later at defendant's place. Mrs. Gordon, on cross-examination, was required to answer a question whether her husband had pleaded guilty, the question as indefinite as this. The answer was that he did. This was error. It could neither be shown in this way that the husband of witness was guilty of some violation of the prohibition law, nor could the...