Lewis v. State, 3 Div. 126
| Court | Alabama Court of Appeals |
| Writing for the Court | JOHNSON |
| Citation | 157 So.2d 38,42 Ala.App. 166 |
| Parties | James E. LEWIS v. STATE. |
| Docket Number | 3 Div. 126 |
| Decision Date | 15 October 1963 |
Page 38
v.
STATE.
Page 39
Windell C. Owens, Monroeville, for appellant.
Richmond M. Flowers, Atty. Gen., and Peter M. Lind, Sp. Asst. Atty. Gen., for the State.
JOHNSON, Judge.
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
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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:
'Went out to his car and he said there was something the matter with the starter on it and asked me did I know how to fix it and I told him I'd try to. And I was up under the car trying to work on it and I got out and I was setting in the car under the steering wheel and he was setting out on the ground talking to me and that's the last thing I remember till I woke up the next morning.'
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 [42 Ala.App. 168] 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,...
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Butler v. State, 7 Div. 690
...a part of the record and therefore cannot be considered by the court. Ragsdale v. State, 134 Ala. 24, 35, 32 So. 674; Lewis v. State, 42 Ala.App. 166, 169, 157 So.2d The appellant argues that under Alabama law, Tit. 14, § 395, Code of Alabama, 1940, the jury has unlimited, undirected and un......
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Miller v. State, 1 Div. 188
...to charge on a particular subject applicable under the evidence the procedure is by way of a requested written charge. (Lewis v. State, 42 Ala.App. 166, 157 So.2d 38; Trenholm v. State, 38 Ala.App. 57, 77 So.2d 491). Smith v. State, 53 Ala.App. 657, 303 So.2d It is also true that a trial ju......
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Worrell v. State, 4 Div. 582
...look beyond it. Hernandez v. State, 50 Ala.App. 558, 280 So.2d 831; Strong v. State, 47 Ala.App. 238, 252 So.2d 659; Lewis v. State, 42 Ala.App. 166, 157 So.2d 38; Colburn v. State, 40 Ala.App. 248, 112 So.2d 800. Based on this fact we cannot assume that case No. 6383 was nol prossed. II No......
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Byrd v. State, 6 Div. 776
...to charge on a particular subject applicable under the evidence the procedure is by way of a requested written charge. (Lewis v. State, 42 Ala.App. 166, 157 So.2d 38; Tranholm v. State, 38 Ala.App. 57, 77 So.2d " 'A failure to pursue one of the remedies above set out, if proper and applicab......
-
Butler v. State, 7 Div. 690
...a part of the record and therefore cannot be considered by the court. Ragsdale v. State, 134 Ala. 24, 35, 32 So. 674; Lewis v. State, 42 Ala.App. 166, 169, 157 So.2d The appellant argues that under Alabama law, Tit. 14, § 395, Code of Alabama, 1940, the jury has unlimited, undirected and un......
-
Miller v. State, 1 Div. 188
...to charge on a particular subject applicable under the evidence the procedure is by way of a requested written charge. (Lewis v. State, 42 Ala.App. 166, 157 So.2d 38; Trenholm v. State, 38 Ala.App. 57, 77 So.2d 491). Smith v. State, 53 Ala.App. 657, 303 So.2d It is also true that a trial ju......
-
Worrell v. State, 4 Div. 582
...look beyond it. Hernandez v. State, 50 Ala.App. 558, 280 So.2d 831; Strong v. State, 47 Ala.App. 238, 252 So.2d 659; Lewis v. State, 42 Ala.App. 166, 157 So.2d 38; Colburn v. State, 40 Ala.App. 248, 112 So.2d 800. Based on this fact we cannot assume that case No. 6383 was nol prossed. II No......
-
Byrd v. State, 6 Div. 776
...to charge on a particular subject applicable under the evidence the procedure is by way of a requested written charge. (Lewis v. State, 42 Ala.App. 166, 157 So.2d 38; Tranholm v. State, 38 Ala.App. 57, 77 So.2d " 'A failure to pursue one of the remedies above set out, if proper and applicab......