Leonard v. State, 6 Div. 169

• Decision Date: 22 November 1966
• Docket Number: 6 Div. 169
• Citation: 192 So.2d 461,43 Ala.App. 454
• Parties: Harold Raymond LEONARD, Jr., v. STATE.
• Court: Alabama Court of Appeals

Page 461

192 So.2d 461

43 Ala.App. 454

Harold Raymond LEONARD, Jr., v. STATE.

6 Div. 169.

Court of Appeals of Alabama.

Nov. 22, 1966.

Chas. R. Crowder, Birmingham, for appellant.

Richmond M. Flowers, Atty. Gen., and Robt. F. Miller, Asst. Atty. Gen., for the State.

CATES, Judge.

This appeal was submitted on written argument June 23, 1966.

Leonard seeks review of his conviction of voluntary manslaughter. The jury which found him guilty gave him the maximum punishment, ten years in the penitentiary.

I. Motion to Strike

The State has moved to strike the transcripts of (1) the evidence and (2) the record in toto. Dismissal as a necessary consequence of these two expungements is asked by the Attorney General.

Judgment came on December 17, 1965. Appeal was noted below the same day.

Leonard, on January 20, 1966, filed with the circuit clerk a pauper's notice of appeal under Act 525, September 16, 1963 (Michie's 1958 Code, T. 15, §§ 380(14)--380(25)). This petition led to an order February 3, 1966, that the court reporter furnish Leonard a free transcript of the evidence to be filed in quadruplicate with the circuit clerk.

On March 25, 1966, Judge Gibson, for good cause shown, extended the time for the court reporter to file the transcript of evidence to April 20, 1966. Johnson v. State, 269 Ala. 1, 111 So.2d 610. It was filed on this latter day with the circuit clerk. The entire record was filed here May 6, 1966, which is sixteen days past April 20, the date of the record's establishment below. Michie's 1958 Code, T. 7, § 827(1a), third sentence; Baxter v. State, 41 Ala.App. 533, 143 So.2d 191.

We consider that the Attorney General's motion to strike is not well taken. Under Keeton v. State, 278 Ala. 81, 175 So.2d 774, Act 525, supra, modifies the statutes making up Michie's 1958 Code, T. 7, §§ 827(1)--827(6), so that time cannot begin to run until the trial court has acted on the pauper's petition, if this is timely filed, i.e., within six months of sentence.

Here, February 3 was the date for starting calculation under Supreme Court Rule 37. April 20 thus marked the beginning of the sixty days granted in that Rule:

'* * * Where bills of exceptions have been abolished, the transcript of the record shall be filed in this court within sixty days after the transcript of the evidence has been established in the court below. * * *'

Moreover, it is ironical if not paradoxical that the Attorney General should have suggested to our lawmakers the text of Act 525, supra, so as to furnish due process, yet now moves to strike a pauper's record when already prepared at public expense. Under the spirit of Code 1940, T. 15, § 389, this court will not honor requests to strike where a lower court, under Keeton, supra, has ordered a free transcript. See Rule 48. ¹

II.

Christmas Eve 1964 the appellant, Leonard, was a passenger in the car of one Weldon as were Richard Hite and Larry Taylor. About seven o'clock Weldon drove to the vicinity of 1620 Eleventh Avenue South in Birmingham.

The three passengers, Leonard, Hite and Taylor, got out of the car. Going along a graveled alley, this trio came to a window of an apartment. All three looked in, and all remarked on the absence of Mr. James W. Rule who seemed to be known to them as the tenant.

They went to the rear, found an open window and took out the screen. Taylor crawled in, went to the front door and admitted Hite and appellant, Leonard.

Each took various belongings, e.g., two and one-half cases of whiskey, clothes, a suitcase, a television receiver and a billy stick. They removed the loot in stages: from the apartment to an adjacent field then to Weldon's car.

With Weldon driving the four went to the Miami Club on U.S. Highway 280. There, according to Hite, after Leonard had talked to one Ben Green, all four including Weldon carried the stolen goods into the Club.

Green gave Leonard some $75.00 which was divided among the four when they returned to the car.

Back in the city Leonard and Hite got out and went to a restaurant. Around 9:30 or 10:00 they met Taylor and Weldon again.

Weldon again drove to the same place where he had parked when Hite, Taylor and Leonard broke and entered Rule's apartment.

Again Weldon stayed in the car while Hite, Taylor and appellant, Leonard, went by a different route to Mr. Rule's back window. Rule had a visitor.

Leonard (appellant) eavesdropped at a door while Taylor and Hite stood 'about six feet back up from the window, talking.' In five or ten minutes Leonard returned to the other two. He related overhearing Rule complain to his visitor that some cash in the kitchen was missing. The three held a council of war:

'Q What did this defendant say about staying, or leaving?

'A He said he wanted to stay at the apartment until Mr. Rule left or they both left.

'Q What did Larry Taylor say?

'A He said he wanted to leave.

'Q What did you say?

'A I said I wanted to leave.

'Q Did the three of you leave, or return?

'A We decided we would stay, one would stay at the apartment while the other two left.

'Q Did two of you leave?

'A Yes, sir.

'Q Who?

'A Harold Leonard and myself.

'Q Where did you go, if you went any place?

'A We were hunting some cokes to mix some drinks with.

'Q Where did you go?

'A We drove around.

'Q How did you leave the apartment? When you left the apartment there, left Larry Taylor, which direction did you go?

'A We came back up across the field, the same route we had came down.

'Q Up on 17th Street?

'A Yes, sir.

'Q Did you get in the car up there?

'A Yes, sir.

'Q Was that the same car you had been in?

'A Yes, sir.

'Q Where was Wayne Weldon?

'A He was in the car.

'Q Did this defendant and you get in the car?

'A Yes, sir.

'Q Where did you go together?

'A We went to what is called Gables Square, on the Southside, hunting some cokes, and we got some cokes and took--Wayne Weldon had a girl with him. We took this girl home and returned to the opposite side of the apartments and parked on 16th Street.

'Q This time, you returned down this street (indicating)?

'A Yes, sir.

'Q Did you park close to the alley, or the other street, or close to 11th Avenue?

'A Right across the alley, going to 11th Avenue, South.

'Q You parked right here (indicating)?

'A Yes, sir.

'Q You said the girl had already been taken home when you parked there?

'A Yes, sir.

'Q How long did you and this defendant remain in the automobile while you were parked there?

'A Four or five minutes.

'Q Did you have some drinks then?

'A Yes, sir.

'Q When you stayed there the length of time you stayed there, did the defendant get out of the car?

'A Yes, sir.

'Q Did you get out of the car?

'A Yes, sir.

'Q And did the two of you go together to some place?

'A Yes, sir.

'Q Where did the two of you go together?

'A We walked up the alley to Mr. Rule's apartment.

'Q On this occasion, you were the long street away from his apartment, is that right?

'A Yes, sir.

'Q And you walked up the alley?

'A Yes, sir.

'Q And where did you go when you got up there to where Mr. Rule's apartment was?

'A We went to the back, looking for Larry Taylor.'--Hite's testimony in chief.

Rounding up Taylor, Leonard and Hite waited outside Rule's building for the visitor to go. It was agreed that the tactics would be for Leonard to knock and 'take Mr. Rule inside and Larry Taylor was to follow.' Hite was to stand outside and watch.

This scheme failed when Rule stood his ground and closed the door. Leonard's next plan was, as Hite told it:

'He said he would cut a hole in the screen and undo the latch. He said he would take Mr. Rule inside and Larry Taylor was to follow him.

'I was to go back to the back window to make sure--so that I could see if Mr. Rule had a gun, or not, when he came to the front door.'

Whether Leonard got in by opening the screen or by another means is not quite clear. At all events, some ruse drew Rule to the door where Leonard and Taylor irrupted, the latter felling Rule with the billy stick.

Hite saw Taylor hit Rule between nine and thirteen times on his head with the truncheon. Rule was flat on his back with appellant, Leonard, part of the time standing over him holding him 'on his shoulder, or right below his arms.'

After Rule went inert, Leonard searched his trousers pockets taking out a billfold. At this point, Hite ran to the car. Taylor and appellant Leonard followed.

In the car the contents of Rule's wallet, close to $100, were divided four ways, among Leonard, Taylor, Hite and Weldon. Weldon drove to Five Points where he let Leonard and Hite out.

Rule died from this beating about a week later.

On cross, Hite admitted that he got a fourth of the money and was 'the watchman.' (R. 90.)

Part of Hite's examination on redirect ran:

'Q. And was this defendant there in the jail at that time?

'A Yes, sir.

'Q Now, Richard, did you have any conversation with him concerning your testimony?

'A Yes, sir.

'Q Tell these gentlemen of the jury what he said to you and what you said back to him.

'A He said he would pick up a thousand dollar bond and give me a thousand dollars if I would say that I was drunk or too drunk that night to know what happened and I didn't know exactly what happened, or if I would leave the State of Alabama and not appear.

'Q Was anybody present except you and him when this was said to you?

'A Yes, sir.

'Q Who was it?

'A I don't know their names. They were in the other cell.'

The record shows that Judge Gibson, shortly after Rule's death, had ordered that Hite give bond to appear as a material witness.

The other prosecution witnesses were:

1) Linda Dickerson, Rule's niece who saw him in University Hospital;

2) B. L. Landers, a neuro-surgeon who testified to the treatment rendered Rule and that a brain contusion which caused his death was consistent in etiology with Rule's 'having received nine to thirteen blows with a heavy wooden object, similar to a billy stick, on or about the head';

3) R. B. McPherson, a telephone installation and repair man,...