Morris v. State, 6 Div. 34
| Decision Date | 17 August 1971 |
| Docket Number | 6 Div. 34 |
| Citation | 251 So.2d 629,47 Ala.App. 132 |
| Court | Alabama Court of Criminal Appeals |
| Parties | Albert MORRIS v. STATE. |
Roderick M. MacLeod, Jr., Birmingham, for appellant.
MacDonald Gallion, Atty. Gen., and Robert E. Morrow, Asst. Atty. Gen., for the State.
Appellant was indicted for the offense of murder in the first degree. He was tried by a jury in the Jefferson County Circuit Court, convicted of murder in the second degree, and sentenced to twenty years in the penitentiary.
Appellant filed a plea of former jeopardy. The State filed a motion to dismiss this plea. The evidence taken on the State's motion to dismiss the plea indicated that on January 20, 1969, this case came up for trial and at that time a jury was struck, impanelled, and sworn; that before the indictment was read to the jury and before any plea was at that time entered, and before any further proceedings were had, the State made known to the court that the witness, Walter Murry, who had been subpoenaed by the State, and who had been present in court at the time the case was announced ready for trial, had suffered a heart attack and was unable to appear in court to testify; that said witness to the alleged murder was a material witness to the State's case and that based on those facts the State moved the court to enter a mistrial; that the appellant did not consent to a mistrial and objected to the court's granting a mistrial; and that on consideration thereof the court determined that there was a manifest necessity for a mistrial and then discharged the jury, entered a mistrial, and continued the case until March 24, 1969.
The trial of the case, from which this appeal arose began on March 24, 1969, and it was on that date that the motion of the State to dismiss appellant's plea of former jeopardy was heard and passed upon by the trial court. Upon a consideration of the evidence submitted the trial court granted the State's motion to dismiss said plea.
The court refused appellant's request for the following charge in writing:
The court also refused appellant's requested charges numbers 3 and 5, which are as follows:
State's witness, Winnie Johnson, testified in substance that she worked in the cafe where the difficulty occurred in which the defendant killed the deceased; that the defendant came into the cafe and ordered some sandwiches; that the defendant was drinking; that the deceased was in the cafe and was sitting on a stool at the counter; that the defendant was sitting at a table; that she did not see any trouble or hear any harsh word between the two until she saw the deceased lying on a table with his hands up and the defendant standing over him hitting him in the chest with a hand which held a knife; that the table turned over and the deceased fell on the floor; that the deceased attempted to get up but the defendant was standing over him still stabbing at him; that Claude Hardaway tried to pull the defendant away from the deceased and Andrew Norwood, who had been seated at the table with defendant, stabbed him (Hardaway) in the back; that Hardaway then turned the defendant loose and that the defendant was still standing over the deceased swinging at him. Winnie Johnson further testified that the deceased did not have any weapon in his hand during the difficulty.
Claude Hardaway testified in substance that he came into the cafe about eleven o'clock, before the difficulty began; that the deceased was sitting at the bar on a stool and that the defendant came into the cafe; that the first he knew of any trouble was when he heard a scuffling and looked around and the deceased was getting up off the stool and the defendant threw his hand back stabbing at the deceased; that he was stabbing at his chest; that deceased was just backing up with his hands up; that he could see the deceased's hands and that he did not have a knife; that he did not have anything; that the defendant was stabbing at him while he was backing away; that the deceased fell across a table on his back and his hands were still up; that while deceased was on his back on the table the defendant was stabbing at him; that the defendant had a knife in his hand at the time he was stabbing at the deceased; that he pushed the defendant back and said don't do that; and that someone was pulling the deceased back and that Andrew Norwood stabbed the witness.
There was other evidence submitted substantiating the testimony of the two aforementioned witnesses, as well as testimony which conflicted with it.
The evidence further showed that the deceased died as a result of knife wounds received on the occasion in question.
We shall first consider the ruling of the trial court in granting the motion of the State to strike the defendant's plea of former jeopardy.
In the case of Lyman v. State, 47 Ala. 686, the Supreme Court of Alabama declared:
'To constitute jeopardy, in the sense here used, it is not necessary there should be an actual conviction or acquittal.
'The rule on this subject, as I understand it, is, that in a case of felony a prisoner is put in jeopardy, in a legal sense, when he is put upon his trial on a good indictment, has been arraigned and pleaded not guilty, or the plea of not guilty has been entered for him by the court, and a lawful jury is duly impanneled and sworn And charged with his trial.
...
To continue reading
Request your trial
-
Dulaney v. State
...for the jury as to the guilt of the defendant unless the evidence palpably fails to make out a prima facie case. Morris v. State, 47 Ala.App. 132, 251 So.2d 629; Jones v. State, Ala.App., 307 So.2d 59. In Hill v. State, 207 Ala. 444, 93 So. 460, the Supreme Court held: 'In every criminal pr......
-
Chavers v. State
...evidence presented a question for the jury as to the guilt of the defendant unless it failed to make a prima facie case. Morris v. State, 47 Ala.App. 132, 251 So.2d 629; Irons v. State, 42 Ala.App. 349, 165 So.2d In our judgment there was legal evidence from which the jury could by a fair i......
-
Simms v. State, 4 Div. 313
...for the jury as to the guilt of the defendant unless the evidence palpably fails to make out a prima facie case. Morris v. State, 47 Ala.App. 132, 251 So.2d 629; Irons v. State, 42 Ala.App. 349, 165 So.2d 125; Bradford v. State, 35 Ala.App. 407, 47 So.2d 599; Jones v. State, 54 Ala.App. 251......
-
Anthony v. State
...State, 60 Ala. 78. * * *' For other cases dealing with this matter, see Inman v. State, 39 Ala.App. 496, 104 So.2d 448; Morris v. State, 47 Ala.App. 132, 251 So.2d 629; Artrip v. State, 41 Ala.App. 492, 136 So.2d 574; Lyles v. State, 41 Ala.App. 1, 122 So.2d When does jeopardy begin? In Sco......