Lewis v. State
| Decision Date | 15 October 1963 |
| Docket Number | 3 Div. 126 |
| Parties | James E. LEWIS v. STATE. |
| Court | Alabama Court of Appeals |
Windell C. Owens, Monroeville, for appellant.
Richmond M. Flowers, Atty. Gen., and Peter M. Lind, Sp. Asst. Atty. Gen., for the State.
After the overruling of his motion for a new trial, James E. Lewis appeals from a conviction for the second degree murder of James Albert Cole, for which he was sentenced in the Circuit Court of Conecuh County to a term of ten years in the State penitentiary.
The twenty-one year old appellant was on leave from the United States Army visiting at the home of his father, Alfred Lewis, in Range, Alabama, on Saturday, May 12, 1962. On that Saturday afternoon the now deceased, James Cole, drove up to the front of the Lewis home and persuaded the appellant to ride with him to Deer Range. The Lewis home was situated next to the last dwelling on a dirt road which ended at Cole's home where Cole apparently lived alone. Beyond the end of the road was a branch and beyond that, other homes.
The Lewis family had lived at this location from the time the appellant was a child but Cole, who was fifty-two years old, had moved into his home after appellant had joined the Army at the age of eighteen. It appears that appellant and the deceased were only casual acquaintances at the time of this incident.
Appellant got into Cole's 1955 Ford at about 8:00 P.M. His testimony at this point is as follows:
'When I got in the car with Mr. Cole he had two pints of moonshine whiskey in there with him and I took a couple of drinks with him going onto Deer Range and we stopped there in front of Mr. Miles Jackson's store and was standing there drinking, well that's the last thing I remember--and he asked me did I want to go to Brewton with him and I told him no, and we was standing there talking and drinking all at the same time and I just blacked out or something another and I woke up at his house about twelve o'clock.'
Appellant further testified that he did not remember going to Brewton or that a third person accompanied them. Jerome Sawyer testified that he saw appellant in Brewton that night with James Cole and another person and that appellant waved to him from the front seat of the 1955 Ford.
Appellant recalls awakening around midnight in Cole's house where the two were sitting at Cole's 'eating table' on which was a bottle of moonshine whiskey. Appellant further testified that he had not drunk much moonshine whiskey prior to this incident and that:
'Well, we set there and talked a long time and I got up and told him I was going home and he wanted me to spend the night with him and I told him I would go on up to the house, and we got to arguing around there and he pulled a knife out, I don't know whether he intended to cut me with it or anything but he had it in his hand and I asked him what was he going to do with the knife and he didn't say nothing and I got up and started off and when I got up and started off he started towards me, and I hit him but I didn't even hit him hard enough to knock him down, and when I hit him I grabbed his hand and twisted the knife out of his hand.'
Appellant testified that he put Cole's knife in his pocket and made no further effort to hit him and that they:
Additional questioning by his attorney brought out that the appellant remembered that Cole went back into the house to get a flashlight while appellant was under the car and that after getting under the steering wheel Cole had another drink, and that he still had Cole's knife in his pocket while Cole was sitting on the ground. They did not fight in the yard.
Appellant continued to testify:
'Well, it was just coming daylight and I woke up and I thought he was laying there asleep, he kind of had his head turned side ways, I didn't pay much attention to him and I reached back like that and started to get up and I felt something under my hand and I looked and my wallet was there on the seat and I looked in it and all the money was gone [five $20.00 bills, one $5.00 bill, and three $1.00 bills] and I just taken it and stuck it in my pocket.'
Appellant testified that there was another wallet lying there but that he left it alone and then walked to his father's house by the shortest route, going down the road and through a field, which took about ten or fifteen minutes. When he got to his father's house, Lewis was still drunk and went into a room where he changed clothes. His father came in and he heard him say something about going to get some eggs.
The father, Alfred Lewis, testified that his son came home wearing civilian clothes at about 4:00 A.M. when he was feeding the hogs and that at about 6:00 A.M. he drove his truck to Cole's to get some eggs, which is where he normally bought his eggs. When he got there, he found Cole dead.
Upon discovering the body, Alfred Lewis had his brother call Sheriff Brock. Later, Alfred Lewis told the sheriff that 'they said my boy was with him [James Albert Cole]', which caused the sheriff to suspect the appellant.
Sheriff Brock testified to details indicating that there had been a fight in the house and in the yard and signs of heavy drinking in the area. State Toxicologist Nelson Grubbs, who performed an autopsy on the deceased, testified that in his opinion Cole died from being strangled by fingers which crushed his voice box causing his lungs to fill up with blood. In addition to the evidence of strangulation, Grubbs testified that he found several abrasions on the body and that the nose and facial bones were crushed and that four ribs were fractured. He testified that it was impossible to determine the time of death.
William B. Thomas, criminal investigator for the Army at Fort Rucker, Alabama, testified as a witness for the State concerning a voluntary statement taken by him from the defendant on or about May 17, 1962, in the presence of Sheriff Brock as follows:
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