Rogers v. State

• Decision Date: 31 October 1972
• Docket Number: 1 Div. 319
• Citation: 49 Ala.App. 78,268 So.2d 859
• Parties: Johnnie ROGERS v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 859

268 So.2d 859

49 Ala.App. 78

Johnnie ROGERS v. STATE.

1 Div. 319.

Court of Criminal Appeals of Alabama.

Oct. 31, 1972.

David L. Barnett, Mobile, for appellant.

William J. Baxley, Atty. Gen., and Bernard F. Sykes, Asst. Atty. Gen., for the State.

TYSON, Judge.

Johnnie Rogers was indicted for the murder of one Governor Foster Hall by stabbing him with a knife, and was convicted of murder in the second degree. The jury's verdict and judgment fixed punishment at life imprisonment.

The homicide in question occurred on the night of May 9, 1971, at the home of one William Woodward in Mobile, Alabama. Woodward testified that the appellant lived next door to him, and, along with about twenty or twenty-five other persons, was invited to his home on that occasion to celebrate his wife's birthday.

Woodward stated that Rogers came to his house that afternoon about 1:30, left about twenty minutes later, and returned with Governor Hall, the deceased, around 4:00 p.m. He testified that everyone there that night was drinking, including appellant and the deceased, but that in his opinion neither of them was drunk.

At one point during the evening, at about 7:00 p.m., Woodward overheard appellant arguing with one Willie Earl, another guest at the party. Woodward believed the argument to be over a drink. Appellant ws asked to leave the party by Willie Mae Ford, Woodward's common law wife, and, later, according to Woodward, 'Willie Mae asked me to put Johnnie out.' Appellant left the party for a short while, then came back and began arguing with Willie Earl again. Governor Hall was apparently not involved, at this time, in the argument.

Woodward testified that as appellant was leaving the party for the second time, he told Governor Hall that he wanted to talk with him outside. Woodward stated that he followed appellant and Hall as they went outside, and, according to Woodward, when the three of them got outside, appellant grabbed Hall around his arms and said, 'Talk to me.' Woodward stated that he then told appellant to release Hall, to which appellant responded, 'I feel him getting a knife.' At that point, appellant turned Hall around, hit him, and Hall fell to the ground, hitting his head on the house as he fell.

Woodward then grabbed the appellant, pulling him away from Hall, and in the process noticed that the appellant was cut on the right arm. At some point during the fracas, Woodward stated that the appellant stabbed him in the knee, at which point he released the appellant.

It was Woodward's testimony that appellant then straddled the deceased, who was lying on the ground, and stabbed him twice in the chest. At that point, Woodward went next door and called the police.

Woodward further stated that he never saw Governor Hall cut the appellant, nor did he ever see the deceased with a knife in his hand.

After calling the police, Woodward returned to his house and saw the appellant standing in his own yard, separated from his yard by a fence. He heard someone say, 'Johnnie you're going to kill him, you're going to kill the Governor.' Woodward saw appellant jump over the fence separating the two yards and heard him say, 'If I haven't, I'm going to kill him.' As the appellant was jumping the fence his wife grabbed his leg, causing him to fall and apparently injure his leg. He heard appellant say he was going to cut Hall's nose off, then saw appellant stab the deceased several more times.

Willie Mae Ford testified that she was present at the house when the killing occurred; that at one time during the evening she asked appellant to go home; that he did in fact leave, but came back several minutes later; that she then told her husband to have a talk with the appellant. She heard appellant tell Governor Hall that he wanted to talk with him, and the two of them, together with her husband, went outside.

When she next looked outside, she saw the appellant on top of Hall, cutting him, and saying, 'I'm going to kill him.'

State's witness Samuel Huff was also present at the party on the night of the homicide, but did not witness the entire incident. He testified that he saw appellant jump over the fence and say, 'This son-of-a-bitch ain't dead.' According to Huff, the appellant 'tried to cut his (deceased's) nose off and he couldn't so he started working on his throat.' At that time Huff went back into the house.

One Robert Ford was also present at the party and witnessed the killing. He saw appellant and Hall outside, and appellant was telling Hall, 'Listen to me, you're going to talk to me.' He further stated that he saw appellant push Hall back and say, 'You're not going to get to your knife'; that Hall had his hand in his pocket, and when Hall pulled his hand out of his pocket, appellant swung him around, staggering Hall. According to Ford, Hall hit appellant on the arm with his knife, and his (Hall's) momentum carried him to the wall of the house where he struck his head and was knocked unconscious.

Ford went into the house to tell his sister, and when he came back out, 'Johnnie was sitting on Hall stabbing him.' He saw appellant stab deceased approximately three times. Ford then went back into the house. He returned in a moment and saw the appellant standing on the other side of the fence in his own yard. He heard appellant say, 'I've got to kill him.' He then saw appellant leap the fence, and according to Ford, 'He sit astraddle of him with the knife and put it on his nose and cut his nose and when he did that I walked away and went back into the house . . . I couldn't take no more.'

Johnnie Rogers took the stand in his own behalf. He testified that on the date in question he first went to the home of Willie Mae Ford around 9:30 a.m., at which time he assisted Governor Hall in building a fire in the barbeque pit in preparation for the party that night. Thereafter, he and Hall, and one Jeremiah Huff, purchased three beers from Willie Mae Ford and drove to Jeremiah Huff's sister's house. While there, he and Huff played cards until about 11:00 or 11:30, during which time he stated that he drank about half a quart of gin.

Appellant testified that he arrived at the party by himself around 12:30 or 1:00; that Hall was already there when he arrived. He further stated that he began drinking beer when he arrived at the party, and during the evening consumed a large quantity of alcohol, including gin, whiskey, and beer.

Appellant testified that at one point in the evening he asked one Mary Moore, an aunt of Willie Earl, if he could get her anything. Willie Earl apparently resented this remark to his aunt, and an argument ensued. Willie Mae Ford intervened and asked appellant to leave the party.

Appellant left the party but returned shortly thereafter to get his cigarettes which he had left behind. He stated that Willie Mae let him in, gave him a drink, and they proceeded to the den. In the den he was met by Willie Mae's husband, William Woodward, who told him to leave. Appellant said he told Woodward that he wanted to talk to him, and they walked outside for that purpose. According to appellant, Hall went outside with them and the next thing he knew, 'William was shaking my arm and Governor was cutting me in the arm laughing like that.' A scuffle ensued during which Hall was thrown against the fence.

According to the appellant, 'I blanked out but I know I had a hold of him and when my sight came back I was shaking him toward my chest and that made the knife stab him in the chest and it cut him.'

Appellant stated that he had no recollection of having intentionally stabbed the deceased.

I

In the prosecuting attorney's opening remarks, we find the following:

'MR. GRADDICK: After we finish our opening remarks to you then the State has the burden to place on that witness stand the testimony which you will be concerned with primarily in determining the guilt or innocence of Johnnie Rogers. This is sworn testimony and as Judge Hodnette has told you, you are to listen to this testimony and determine--

'MR. SEALE: If the Court please we object to his statements other than statements of what he intends to prove.

'THE COURT: Well, I don't think that it has done any damage but Mr. Graddick I'll ask you to confine your remarks to what you expect the evidence to show by the State's witnesses.

'MR. GRADDICK: And Willie Mae told her sister that she had asked Johnnie Rogers out one time.

'MR. SEALE: I object to what somebody stated outside the presence of the Defendant.

'THE COURT: Well it wouldn't be admissible except in some circumstances Mr. Graddick.

'MR. GRADDICK: Yes but I expect the evidence to show that this lady told about it.

'THE COURT: All right. Overruled.

'MR. SEALE: We want to object to his statement in his oral statement of what he expects to prove that Willie May told her husband something. It is not being shown to have been made in the presence and hearing of the Defendant.

'THE COURT: Overruled.

'MR. SEALE: Except.

'MR. GRADDICK: Now basically that's what the State expects to show you. The Judge will charge you at the end of the trial that we have to prove that beyond a reasonable doubt and after you hear the evidence that comes from that witness stand I'm sure that you--

'MR. SEALE: We object to his arguing the case to the jury, saying after you hear--

'THE COURT: Overruled.

'MR. SEALE: Except.'

The law in Alabama is well settled that counsel is to be allowed considerable latitude in presenting to the jury in his opening statement what he expects the evidence to show. Pope v. State, 174 Ala. 63, 57 So. 245; Patterson v. State, 34 Ala.App. 359, 39 So.2d 709; Daniels v. State, 243 Ala. 675, 11 So.2d 756, cert. den. 319 U.S. 755, 63 S.Ct. 1168, 87 L.Ed. 1708; Forrest v. State, 257 Ala. 97, 57 So.2d 385.

The statement here that 'Willie Mae told her sister that she had asked Johnnie Rogers out one time,' was in the nature of what the State expected to show. The proposed evidence was not Per se...