Sashner v. State, 1 Div. 190

• Decision Date: 13 June 1972
• Docket Number: 1 Div. 190
• Citation: 263 So.2d 701,48 Ala.App. 246
• Parties: Willie Lee SASHNER v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 701

263 So.2d 701

48 Ala.App. 246

Willie Lee SASHNER v. STATE.

1 Div. 190.

Court of Criminal Appeals of Alabama.

June 13, 1972.

Robert F. Ware, Jr., Chatom, for appellant.

William J. Baxley, Atty. Gen., and Don C. Dickert, Asst. Atty. Gen., for the State.

PER CURIAM.

The appellant was convicted in the lower court of a violation of Tit. 14, § 85, Code of Alabama, 1940, recompiled 1958, burglary of an inhabited house or dwelling in the nighttime, and sentenced to imprisonment for ninety-nine years and one day.

Before entering on to the trial the appellant filed a motion for a change of venue on the ground that it was impossible for him, a black male, to obtain a fair and impartial trial in the county in which the prosecution was pending. The State filed an answer denying the allegations of the petition and the court heard the testimony offered orally by the State and the appellant.

The appellant assumed the burden of proving to the reasonable satisfaction of the court that an impartial trial could not be had and an unbiased verdict could not be reasonably expected. Welch v. State, 28 Ala.App. 273, 183 So. 879; Hunter v. State, 38 Ala.App. 351, 83 So.2d 737. There was a complete absence of proof to support the motion in the instant case, and it was therefore properly overruled by the court.

The State offered evidence to show that on the night of October 13, 1969, Mrs. Joe Lundy, her two small children, and her sister, Juanita Johnson, were alone in the Lundy home in Washington County in or near the town of Millry, the husband, Joe Lundy, having left the home to go to work about 9:30 P.M. Mrs. Lundy testified that she stayed up until about midnight at which time she saw that all doors were locked and all windows closed before she retired. She and her two children, one of whom was three years of age and the other an infant, were sleeping in one bed in one of the bedrooms and her sister who was visiting for the night was sleeping alone in another bedroom of the house. A light was kept burning in the bedroom where Mrs. Lundy and her children were sleeping and she testified that some time during the night, after she had gone to sleep, she was awakened by someone shaking her and telling her to wake up and that after she was fully awake she felt someone kiss her. After begging the intruder to leave he asked to have sexual intercourse with her and she refused. The intruder told Mrs. Lundy his name was 'Willie' and she appeared to have full opportunity to look at him while he was in the room. After further conversation he began to choke her and she screamed out, awakening both children and her sister, who came to her bedroom and said, 'Negro, what are you doing here?' The intruder left at that time and Mrs. Lundy obtained a shotgun and later checked through the house to see if he had gone. She identified the appellant as the person with whom she had had the encounter and testified that he had on work pants of a yellow color, a dingy shirt, a small moustache on his top lip, and the index finger of his left hand was cut off. He had been drinking and she could smell alcohol but he did not appear to be drunk. Within a few minutes she went to a neighbor's house and reported the matter, after firing the gun at least one time and screaming. The sheriff's department was notified and Sheriff Sullivan arrived soon after, at the home. State's witness Murphy, a State Investigator, testified that he made an examination of the premises and found scuff marks on the outside of the house under and near a window and found a stone which appeared to be freshly overturned from the fresh dirt which had stuck to the bottom of the stone. He further testified there were scuff marks on the window sill and that this particular window had no lock on it and would slide up and down. Pictures were introduced depicting the discoloration of the neck of Mrs. Lundy and also pictures were introduced showing the inside of the house, the stone, and the window which the alleged scuff marks were on. The window lead into a hallway going to the back of the house where there was situated a chair and water heater. The pictures were properly authenticated and were alleged to have been taken about seven o'clock in the morning after the alleged occurrence. The pictures were marked State's Exhibits A, B, C, D, E, F, G, H and I.

Appellant testified that on the night of the occurrence he was in the company of Tommy Land and that he did not remember anything that happened between 1:30 A.M. and about 5:00 A.M. when his wife found him on the front porch of her home and helped him in the house and to bed. He further testified that he was awakened by the sheriff who placed him under arrest shortly thereafter.

Defense witness Tommy Land testified that he was in the company of the appellant until about midnight on the night in question and that they had been trying to find alcoholic beverages to drink but had been unable to do so. However, he did testify that appellant was drinking, although he did not say he was drunk, but he acted like he was tight.

Appellant's wife, Susie Mae Sashner, testified that she helped the appellant off of her front porch into bed about 1:00...