Langley v. State
| Decision Date | 26 February 1980 |
| Docket Number | 1 Div. 88 |
| Citation | 381 So.2d 223 |
| Parties | Victor Carios LANGLEY, Jr. v. STATE |
| Court | Alabama Court of Criminal Appeals |
Donald E. Brutkiewicz, Mobile, for appellant.
Charles A. Graddick, Atty. Gen., M. Clayton Humphries, Jr., Asst. Atty. Gen., for appellee.
This is an appeal from a conviction of an assault with intent to murder and a sentence to imprisonment for ten years.
The victim was Freddie Bates, twenty-two years of age. The relationship between defendant and the victim and the circumstances surrounding the alleged crime are fraught with then existing or previous illicit relations with women, which gave rise to quarrels and violence among all concerned.
According to the undisputed and unquestioned evidence, Bates, while sitting in an automobile, was shot in the middle of an arm by a shotgun in the hands of defendant, standing on the outside of the automobile, while the muzzle of the gun was only a few inches from the arm of Bates. The shot resulted in an almost complete severance of the arm at or about the elbow and a complete surgical amputation and treatment promptly thereafter. At the time of the shooting, an eighteen-year-old girl friend, a former and subsequent roommate of the victim, was in the automobile with him. She was the daughter of the wife of defendant, whom he married about five months before the incident involved and with whom he had lived prior to the marriage. At the time of the shooting, the two were living in a trailer on property owned by the defendant. It was at the trailer one night in June 1978 that the shooting occurred.
In or about the trailer, at the time of the violence that erupted and resulted in the shooting, were defendant's wife and defendant's sixteen-year-old son, who was sitting in the trailer looking at the television about the time the shooting occurred.
Bates and his girl friend testified on call of the State. Defendant, his wife and his sixteen-year-old son testified on the call of the defendant.
There was testimony that Bates had been drinking rather heavily. There was also testimony that indicated defendant had been drinking. The evidence is without dispute that there was hard feeling on the part of defendant toward Bates, whether justified or not, that he had ordered Bates off his property before and that upon learning that he was there in the automobile, he ordered him off again, that Bates responded with curses and that defendant took a shotgun and fired twice at the grill of the automobile. In attempting to get away, Bates backed into a tree. Defendant's version of what occurred then was to the effect that an argument ensued between him and the victim in which the victim insisted that he be allowed to get his car started and off the premises and defendant insisted that he leave the automobile, walk away, and send for a wrecker to get it. Upon the victim's failure to do so, defendant went to the automobile and, with the barrel of the gun, broke the glass of a window and started poking Bates with the barrel of the gun. His testimony was in part as follows:
There was evidence tending to show that during the time defendant had the shotgun in his hand he could have shot Bates in the head or in some other vital part of the body. This fact and the circumstances as a whole afford logic to the position taken by appellant that he did not intend to murder Bates. Appellant insists that there was no substantial evidence to show either an intent to kill or malice. There is no disagreement among the parties that to constitute an assault with intent to murder there must be both intent to kill and malice, that an assault with intent to murder is an assault with the intent to take life, under circumstances which if successful would constitute murder, either in the first degree or in the second degree. McArdle v State, Ala.Cr.App., 372 So.2d 897, cert. denied, 372 So.2d 902 (1979); Sanders v. State, Ala.Cr.App., 354 So.2d 44, cert. denied 354 So.2d 48 (1977); Douglas v. State, 42 Ala.App. 314, 163 So.2d 477 (1963), cert. denied, 276 Ala. 703, 163 So.2d 496 (1964).
Appellant says the instant case is similar to McArdle, supra, in which a conviction for assault with intent to murder was reversed on the ground of the insufficiency of the evidence. In that case, defendant brandished a gun and fired it four times into a floor, but he did not present the gun at the alleged victim and did not fire it in her direction. Appellant says that the instant case is similar also to Smith v. State, 54 Ala.App. 96, 304 So.2d 914 (1974), in which defendant was convicted of manslaughter in the first degree. It was not held therein that the evidence would not have supported a verdict of murder in the second degree. Pertinent to the question now before us, is what was stated at 304 So.2d 918:
Perhaps no person knows better than defendant the state of his mind or the state of his heart at the time the gun was fired, but the jury was not required to accept his recollection thereof as testified to by him.
To what we have said, we should add that there was testimony by Bates and by his girl friend that at about the time Bates was wounded, defendant said, "I'll kill you." Furthermore, an officer testified that before he started questioning defendant, defendant said, ...
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Shelly v. Ala. Dep't of Corr.
...For all that appears, “assault with intent to murder” would now be characterized as attempted murder. See generally Langley v. State, 381 So.2d 223, 224 (Ala.Crim.App.1980) (“[T]o constitute an assault with intent to murder there must be both intent to kill and malice, that an assault with ......
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Allred v. State
...which is adequately and substantially covered in the court's oral charge or in given charges does not constitute error. Langley v. State, Ala.Cr.App., 381 So.2d 223; Section 12-16-13, Code 1975, and the cases there We have repeatedly held that a conflict in alibi testimony and identificatio......