Scruggs v. State, 6 Div. 560

• Decision Date: 21 March 1978
• Docket Number: 6 Div. 560
• Citation: 359 So.2d 836
• Parties: Willie James SCRUGGS v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 836

359 So.2d 836

Willie James SCRUGGS v. STATE.

6 Div. 560.

Court of Criminal Appeals of Alabama.

March 21, 1978.

Rehearing Denied April 18, 1978.

J. Richard Hynds of Smith, White & Hynds, Birmingham, for appellant.

William J. Baxley, Montgomery, Atty. Gen. and James L. O'Kelley, Birmingham, Asst. Atty. Gen., for the State.

HARRIS, Presiding Judge.

Appellant was convicted of burglary in the first degree and the jury fixed his punishment at imprisonment in the penitentiary for a term of forty-five years. He was represented by court-appointed counsel and at arraignment pleaded not guilty. After sentence was imposed, he gave notice of appeal. He was furnished a free transcript and trial counsel was appointed to represent the appellant on this appeal.

Omitting the formal parts the indictment reads as follows:

"The grand jury of said county charge that, before the finding of this indictment, and subsequent to June 6, 1935, Willie James Scruggs, alias Cookie, whose name is to the grand jury otherwise unknown, did in the nighttime, with intent to steal, break into and enter the inhabited dwelling house of Gertie M. Howard, which was occupied by Gertie M. Howard, a person lodged therein, against the peace and dignity of the State of Alabama."

There was no request for the affirmative charge, no motion for a new trial, and no exceptions reserved to the oral charge of the Court. At the close of the State's case appellant made a motion to exclude the State's evidence on the ground the State failed to make out a prima facie case against appellant. This motion was overruled and this puts us to a recital of the evidence tending to support the verdict of the jury.

The victim was a 74 year old white woman who was completely and totally deaf. In order to elicit her testimony it was necessary to write questions to be propounded to her by both the prosecution and the defense which questions were read out loud for the jury and then handed to the witness to read and state her answers. The Court handed the witness a written oath requesting that she read it and she raised her hand and stated, "I swear that the evidence I give in this case to be the truth, the whole truth, and nothing but the truth, so help me God."

In response to the questions posed to her the witness testified that she was Mrs. Gertie Howard and lived at 3409 Jefferson Avenue, Southwest, in Powderly, Jefferson County, Alabama, and that she had lived at this address for twenty-five or twenty-six years and lived alone. She said that on the night that she was assaulted she had been to church and her pastor brought her home between 9:30 and 10 o'clock. The church had given her some Christmas flowers and she was separating the flowers to put them in some baskets for decoration for Christmas. She had been in her home for twenty, thirty or forty-five minutes when she was suddenly confronted by a black man with a knife in his hand. (The list of exhibits shows it was a butcher knife.) This man grabbed her and jerked her down on the floor. He got on top of her and beat her on her head with the heel of her shoe. He also beat her in the face and scratched her eyes. She grabbed the hand in which he had the knife and she was weak and bleeding all over. She did not get a good look at him because her eyes were filled with blood. He put his private part into her private parts while she was praying to God to help her. She told him if he wanted money, she didn't have much, but to take it and get out. She asked him not to kill her.

She further testified that her windows and doors were closed and locked, saying, "I had even drove nails in my windows to keep someone from getting in." After he had raped her he grabbed her pocket book and ran out the house. She said she had close to a hundred dollars in it and that it was found later with the money gone.

She managed to call her son who notified the police. She was carried to the hospital for treatment and when asked what injuries she received, said: "My ligament was cut, and, also, this leader across the back of my hand was cut. The finger was dropped down, and my face and head were black all over."

The victim further testified that the last time she saw the knife it was lying on the davenport. She showed it to the police officers and she didn't know what happened to it.

On cross-examination she was asked if the appellant was the man who broke into her house and she replied, "I couldn't be positive, because I couldn't see, because of the blood in my eyes. It looks like him."

On redirect she testified that her son mowed her yard two or three times and a girl from the church came out and mowed it twice. She stated that was the only time it was mowed. She was asked if appellant ever mowed the grass and replied, "I never seen him before. I never saw him until that night."

Mr. George T. Howard, Jr. testified that the victim was his mother and she was 74 years of age; that she lived alone at 3409 Jefferson Avenue, Southwest, in the City limits of Birmingham, Jefferson County, Alabama; that on Thursday night, November 19, 1976, he got a call from his mother at approximately 11:30 or 12 o'clock and she was screaming, "Help, help, I've been ." He notified the Police Department and left immediately for his mother's home arriving around 12:30 o'clock. When he got to her house he found her on a stretcher and present at that time were two police officers, a fire engine and a paramedic squad. He stated that his mother was "beat up in the face, her eyes were beat shut, and she was bloody all over." He followed her to the hospital where she remained four or five weeks. He said he observed cuts on her head and she had about four lacerations on her hands that required surgery.

He further testified that he observed his mother's clothing before she was carried to the hospital and "the undergarments were torn off her and scattered all over the front room and her dress was just hanging on her; that her blouse was partly torn off one arm." He stated that she could hardly get around, she had a pin in her hip, and she had to get around on one crutch. She broke her hip before the night that she was assaulted and raped and the pin was in her hip at that time. He further stated that he mowed his mother's yard.

Police Officer Lennie M. Sams testified that he was employed by the Birmingham Police Department and had been so employed a little over ten years. He stated that he and his partner, Officer Reese, responded to a call at 3409 Jefferson Avenue, Southwest, on the night of November 18 or the early morning hours of November 19, 1976. He said he had been to this house before and he knew what the problem was when no one answered his knock on the door. The officers looked in the window to see if they could get Mrs. Howard's attention. They could see her in the living room with her flashlight and they got her attention. She came to the front door and let them in the house. Officer Sams described her physical condition in these words: "Physically, she looked like she had been beaten, and there was blood all over her head, ran down into her eyes. Her hands were bleeding and we could observe several cuts on them." They observed blood all over her clothes, on the floor, and the wall. He said there was a large puddle of blood on the rug in the living room, on the couch and it was splattered all over the wall. There was blood on the telephone, the telephone book, and traces of blood throughout the house.

He further testified that he inspected the premises and in the rear bedroom the glass in the window was broken out and there was glass on the floor beneath the window. He stated there were at least two trunks near the broken window and one was on top of the other and blocked the view of the window to a certain extent. He said these trunks were disarranged as if they had been shoved over to make way to enter the room and they were shoved away from the window; that the top of one of the trunks was leaning over on the side of the bed. He stated that he went outside the house and found the screen which had been torn from the window. It was lying over the fence in the back yard approximately twenty feet from the window. He said he inspected the back door and it was open.

He further stated that the only way he could converse with Mrs. Howard was to write notes to her and she would answer the questions. He said he gave the evidence technician a knife that Mrs. Howard had given him. The knife was covered with blood and hair. At trial he stated that the knife looked like the same one they got that night while in the Howard house, and he gave the knife to the evidence technician. He saw an evidence technician lifting prints from the trunks.

Officer Robert E. Zeanah, an evidence technician with the Birmingham Police Department, testified that he responded to a call and went to Mrs. Howard's home. He arrived at 1:18 a. m. on November 19, 1976. He, too, saw blood on the couch, on a carpet in front of the couch, on the telephone, telephone book and on the wall near the telephone. He stated the telephone book was open. He inspected the house and in the rear bedroom he found the window open and a glass pane broken out. He processed the window for fingerprints, and lifted one print. He processed the trunks in this bedroom and lifted two palm prints from the metal band on one of the trunks, the one that apparently had been moved and was leaning against the bed. He placed these latent prints in a manila envelope, sealed it, and marked it. He took the envelope to City Hall and pushed it through a slot in a locked box.

Zeanah further testified that they designated the lifts as number 126 from the window, number 141 and 143 lifted from the metal band on the trunk. He said that when he deposited the envelope in the lock box at City Hall the lifts were in the same condition as they were when he made the lifts. He stated that after they were placed in the lock box ...