Richardson v. State
| Decision Date | 11 October 1966 |
| Docket Number | 8 Div. 42 |
| Citation | 43 Ala.App. 412,191 So.2d 251 |
| Parties | Dennis RICHARDSON v. STATE. |
| Court | Alabama Court of Appeals |
David U. Patton and Byrd R. Latham, Athens, for appellant.
Richmond M. Flowers, Atty. Gen., Wm. G. O'Rear and John D. Bonham, Asst. Attys. Gen., for the State.
The affidavit in this case reads, in pertinent part:
'* * * one Dennis Richardson, whose name is to affiant otherwise unknown, did operate a vessell (sic) or similar device while intoxicated or under the influence of any narcotic drug, barbiturate or marijuana, upon the waterways or upon a river in Limestone County, Ala., * * *.'
The statute defendant is charged with having violated is subdivision (2) of Section 97(21), Title 38, Code of Alabama, 1940, (Pocket part). The offense is made a misdemeanor.
The defendant was convicted by a jury. A fine of $25.00 was imposed and the court added, as additional punishment, thirty days' imprisonment in the county jail.
According to the state's evidence, Terry Bottom, Athens' Chief of Police, and Monroe Roberts, a deputy sheriff, answered a call to investigate a disturbance at a small recreation park on the west bank of the Elk River, at the Elk River Mills Bridge in Limestone County.
Mr. Bottom testified the officers arrived at the scene at about 4 P.M. They found four or five people swimming in the park area. A boat operated by appellant was running in circles, or back and forth, forcing the swimmers out of the water. The boat came within twenty-five feet of witness, and he could tell that defendant and his companion were intoxicated. Except for short periods when it would go out of sight, the boat was in witness's view from the time he arrived until about 8 o'clock that night. At approximately 8:00 p.m., the boat came into the bank with defendant and another man pushing it in the shallow water. This was the only boat that came to the bank at that time and he saw no other boat in the area. Defendant and his companion were intoxicated. The officers arrested them and took them to jail. The witness stated he never left the vicinity of the park from the time he arrived with Deputy Sheriff Roberts until defendant was arrested.
Deputy Sheriff Monroe Roberts testified defendant was 'cussing' and yelling from his boat while it was circling in front of the park. Other boats were on the opposite side of the river. Around 4:30 the defendant's boat went out of sight up the river and did not return until after dark at which time another boat towed defendant's boat to the landing at the park. The second boat turned defendant's boat loose just short of the bank and continued up the river. When defendant and his companion got out of the boat they were arrested by witness and Terry Bottom. Defendant was drunk at the time he was arrested. This witness further stated when they reached the park area Terry Bottom let him out of the patrol car and drove away, returning at intervals to drive by the place where witness was concealed in the undergrowth and he never saw Mr. Bottom come down to the water until shortly before the arrest was made.
Mr. Gerald Campbell, a witness for defendant, testified that at approximately 6:30 on the day in question, he, with three companions, was in his boat on the Elk Rover at a point just South of Grigsbys' Ferry when he saw a flickering light on the West bank of the river. Upon investigation he found defendant and another man in a boat out of gasoline. Witness got into defendant's boat to assist him in pouring gas into his boat and remained in the boat to help defendant start his motor. Defendant's boat had no neutral gear and when the motor started it would go forward immediately. Witness moved to the front of the boat where the controls were located while defendant hand cranked the motor from the rear. After the motor started, witness drove the boat the approximate three miles down the river to the landing, and the man in his boat followed. During the ride to the park defendant and his companion stayed in the rear of the boat. Upon arrival at the park witness helped such defendant's boat into the bank. If defendant had been drinking witness coundn't tell it, and he did not smell any intoxicating liquor about him.
The defendant testified he was in his boat on the river near the park at Elk Rover Mills Bridge at about 4:00 the afternoon in question. He denied that he was yelling, cursing or screaming and said he may have made one circle through the park, but if so, he was 150 to 200 feet out in the river from the park. About 4:30 he went up the river there miles to Sugar Creek and stayed there tending his trot lines until dusk. About 6:00 P.M., he headed back toward Elk River and entered it just below Grigsby's Ferry. As he entered the river he ran out of gas and pulled to the east bank. He had seen the Campbell boat go up the river and waited for it to come back. When the boat did come back he signaled it with his cigaret-lighter, not having a light on his boat. Campbell pulled over to defendant's boat and helped him put gasoline in his tank, operated the controls while defendant cranked the engine and then drove the boat to the landing, with Campbell's boat following behind them. At the bank Campbell got back into his own boat and continued up the river. The officers were not at the landing and did not appear for thirty minutes. He had not been drinking that day and was not making noises or swearing while in front of the park in his boat.
Mr. M. W . Evans, Sheriff of Limestone County, was called as a witness for the State in rebuttal. He testified that in his opinion defendant was drunk when he was brought into the county jail after his arrest.
The conflict in the evidence presented a question for the jury as to defendant' s intoxication at the time he was operating the boat, and was sufficient, if believed by the jury to the required degree, to sustain the conviction. There was no error in the refusal of the requested affirmative charge nor in the denial of the motion for a new trial on the ground of the insufficiency of the evidence to sustain the verdict.
Several special written charges were requested by the defendant and all of them were refused by the trial court.
The trial court charged the jury as follows:
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Stockard v. State
...Most of them are cited in Judge Price's treatment of a similar charge 1 requested by defendant and refused in Richardson v. State, 43 Ala.App. 412, 191 So.2d 251, 254 (1966): "Refused Charge 8 has been held good when it refers to a specified witness. Sanderson v. State, 28 Ala.App. 216, 181......
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...oral charge. Stokley v. State, 254 Ala. 534, 49 So.2d 284; Johnson v. State, 42 Ala.App. 511, 169 So.2d 773, (5); Richardson v. State, 43 Ala.App. 412, 191 So.2d 251, (6). For the reasons stated, I would quash the writ of HEFLIN, C.J., concurs in section IX of the foregoing dissenting opini......
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Elliott v. State, 4 Div. 488
...for the jury to consider circumstances other than those that are necessary to show that the defendant is guilty. In Richardson v. State, 43 Ala.App. 412, 191 So.2d 251, a case cited by appellant, the charge approved used the phrases 'beyond a reasonable doubt' and 'every circumstance necess......