Lockett v. State

• Decision Date: 21 June 1928
• Docket Number: 6 Div. 41
• Citation: 218 Ala. 40,117 So. 457
• Parties: LOCKETT v. STATE.
• Court: Alabama Supreme Court

117 So. 457

218 Ala. 40

LOCKETT v. STATE.

6 Div. 41

Supreme Court of Alabama

June 21, 1928

Appeal from Circuit Court, Jefferson County; H.P. Heflin, Judge.

Oscar Lockett was convicted of murder in the first degree, and he appeals. Reversed and remanded.

Somerville Gardner, and Thomas, JJ., dissenting.

Windham & Countryman, of Birmingham, for appellant.

Charlie C. McCall, Atty. Gen., and Thos. E. Knight, Jr., Asst. Atty Gen., for the State.

BOULDIN J.

Oscar Lockett and Clint Mays were jointly indicted for the murder of Ray Payne by shooting him with a pistol.

After severance the defendant Oscar Lockett was tried and convicted of murder in the first degree and sentenced to death.

The evidence for the state tended to show:

The deceased, a police officer of the city of Birmingham, upon request went to the pressing shop of one Loveless on Avenue H and there arrested one Brown. Loveless followed the officer with his prisoner around on Fifteenth street, questioned his authority to make the arrest, leading to a personal encounter between him and the officer. At length Loveless was put under arrest and turned over to another officer arriving on the scene. Officer Payne then obtained a pistol from a bystander fired into the ground, and ordered the negroes who had gathered to scatter. Saying he was going after another negro, he proceeded along Avenue H past the pressing shop and turned up some concrete steps leading to an alley, where he was killed by a pistol shot. Three lines of evidence were offered by the state touching the killing or participation therein.

Without dispute Lockett and Mays, with others about the pressing shop when Brown was arrested, went with or followed Loveless to where the altercation between him and the officer occurred.

One line of evidence was to the effect that Lockett at that time merely suggested that the combatants be separated, and to that end took hold of Loveless, was kicked loose by the officer, and had no further connection with the matter then or thereafter. This line of witnesses, either as eyewitnesses or witnesses to circumstances, lay the killing to Mays without participation, as for their knowledge, on the part of defendant Lockett.

The second line of witnesses, including Mays, lay the killing to Lockett alone. Mays says when the officer kicked Lockett and ordered him to stand back Lockett said, "What you kick me for? You ought not did that." And later, when Loveless had tripped the officer and was on top of him, some one said, "Jerk them up!" And Lockett said, "Kill him, God damn him!" This line of evidence goes to the effect that Lockett proceeded in advance of the officer, got his pistol from the pressing shop, and was seen to fire on the officer.

The third line of evidence tends to show: Both Lockett and Mays proceeded or ran ahead of the officer. That one Lee got Lockett's pistol from the pressing shop and handed it to Mays. That Lockett and Mays got together in a position of vantage. Mays handed the pistol to Lockett who fired one shot, and passed it back to Mays, who also fired. This is the version borne out by a confession of the defendant admitted in evidence.

Defendant on the stand denies participation in the killing, claiming to have gone from the scene of the Loveless affair to the home of Grace Williams, and was there when the shots were fired. Grace testifies firing had preceded his coming, and that he took up a shotgun at her house.

This mere outline, not intended to give emphasis to any part of the evidence, nor to pass upon its probative force in any way, will suffice to show that from the arrest of Brown to the killing of the officer was one continuous affair, all admissible as part of the res gestae. Kennedy v. State, 182 Ala. 10, 62 So. 49; Smith v. State, 88 Ala. 73, 7 So. 52.

The evidence of joint participation in the common criminal enterprise was evidence of conspiracy between Mays and Lockett rendering admissible against Lockett the doings of Mays in furtherance or in perpetration of the crime. The whole matter was for the solution of the jury. If the jury were convinced both were participants, it matters not whose hand held the pistol when the fatal shot was fired.

The res gestae being thus defined, and the fact of conspiracy being supported by the evidence, it is not essential to determine just when the common purpose to kill the officer was conceived. Matters within the res gestae were admissible whether occurring before or during the continuance of the conspiracy. If evidence is admitted without required preliminary proof, if followed by such proof or predicate, the error is cured.

These well-understood rules dispose of many of the questions raised upon the trial and here argued as error.

When the state offered Clint Mays as a witness for the state, on inquiry by the court it was shown he had been convicted and sentenced to death for this offense. As for the defendant's objection that he had been convicted, this fact had already been drawn out by defendant on cross-examination of the witness Spencer Millican. No grounds for the objection that he had been sentenced to death were assigned. If we supply the same ground assigned to the proof of conviction, it was limited to want of prior evidence of a conspiracy or of want of evidence corroborative of an accomplice. Neither of these objections was good. There was evidence of conspiracy, but the...