Snipes v. State

• Decision Date: 31 October 1978
• Docket Number: 1 Div. 945
• Citation: 364 So.2d 424
• Parties: Lewis Charles SNIPES v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 424

364 So.2d 424

Lewis Charles SNIPES v. STATE.

1 Div. 945.

Court of Criminal Appeals of Alabama.

Oct. 31, 1978.

Rehearing Denied Nov. 21, 1978.

Chris N. Galanos, Mobile, for appellant.

William J. Baxley, Atty. Gen., and James F. Hampton, Asst. Atty. Gen., for the State.

BOOKOUT, Judge.

Assault with intent to murder; sentence: ten years imprisonment.

Around dusk on December 20, 1977, the appellant entered the D & E Grocery and asked the cashier, Ms. Terri Davis, for the location of disposable diapers. Ms. Davis directed him to the rear of the store. The appellant returned to the counter with a box of diapers and asked if the store had any others. He was redirected to the rear of the store, and Walter Reeves, a plain clothes guard, followed to assist him. Ms. Davis testified she next heard shots fired in rapid succession from the rear of the store. Ms. Davis looked up and saw Reeves and the appellant struggling with a gun. Reeves called for Ms. Davis to hit the appellant with Reeves' blackjack, which she did. At that time, appellant pushed Ms. Davis, kicked her, and fell on her. He then disengaged himself from the affray and fled.

Mr. Reeves testified to substantially the same facts as Ms. Davis, but added that the appellant told him "this is a hold-up" and shot him several times with a handgun during the ensuing struggle. Reeves added that the appellant then placed the gun against him and said "I am going to kill you." The appellant pulled the trigger, but the gun failed to fire because all the bullets had been spent.

Both Ms. Davis and Mr. Reeves were able to identify the appellant's picture from a photographic array presented to them separately by Sergeant T. C. James of the Prichard Police Department.

The appellant presented an alibi defense consisting of testimony of his first cousin, Ernest Cowin. Cowin stated he had been playing cards with appellant at a location some distance away from the D & E Grocery until shortly before dusk the day the robbery occurred.

I

Appellant argues that the trial court committed reversible error in refusing to give his Requested Charge 15 to the effect that the legal presumption of innocence was to be regarded as a matter of evidence.

The correct principle of law embodied in the above charge was well stated in Davis v. State, 284 Ala. 135, 222 So.2d 719 (1963) as follows:

"Our decisions are to the effect that the presumption of innocence in favor of an accused is evidence which attends the accused until other evidence is presented (usually by the state) sufficient in the judgment of the trier of fact to overcome this primary presumption."

The failure to give such a charge is error provided the subject was not substantially and fairly covered in the court's oral charge or in a charge given at the appellant's request. Section 12-16-13, Code of Ala.1975; Bryant v. State, Ala.Cr.App., 348 So.2d 1136 (1977).

The proper principle was adequately covered in appellant's Charge 14 which was given by the trial court:

"The court charges the jury that the defendant is never called upon to produce any evidence as to his innocence in that he is presumed to be innocent and that presumption is evidence that follows him through the trial."

II

Appellant argues that the trial court erred in giving the State's Requested Written Charge 2 which was as follows:

"I charge you, members of the jury, that both intent and malice can be inferable from the same act of using a deadly weapon, unless the circumstances refute either such intent or malice (i. e., self-defense)."

Appellant argues that the subjective intent of the accused is a fact to be determined by the jury from the evidence. This charge, he asserts, invaded the province of the jury by directing them to find the necessary intent existed as a matter of law. He cites for this proposition Hall v. State, 49 Ala.App. 381, 272 So.2d 590 (1973) which states:

"We, therefore, are of the opinion that the trial court was in error in charging the jury that the law presumes a person intends to do that which he does where the subjective intent of the defendant determines whether a crime has been committed at all and, if so, the character of the crime."

Hall relies upon Oliver v. State, 17 Ala. 587 (1850), however, which narrows this proposition by pointing out that there are cases where the law itself will draw the inference of one fact from the existence of another. An assault with a deadly weapon, as here, is just such a case.

The intent in the instant crime may be presumed from the act of using a deadly weapon unless circumstances negate this presumption. Hall, supra; Shiflett v. State, 262 Ala. 337, 78 So.2d 805 (1955). Thus, the use of a deadly weapon raised the legal presumption of malicious intent referred to in Hall. Where one assaults another by the use of a deadly weapon, the law will infer from that fact that he designed to accomplish the probable and natural results of his act, in the absence of proof to the contrary. Hall, supra.

". . . True if there was any evidence from which it might be inferred that the shooting was accidental, then the question of intent or will would necessarily be a question for the jury, and the court could not instruct them that the will to do the act did or did not exist, but when there is no question about the fact whether the shooting was accidental or designedly done, from the very nature of the weapon the law will imply that it was voluntary, that the party intended what was the probable or natural consequences of his act. . . ." Oliver, supra.

Here there was no proof presented whatsoever that the shooting was in self-defense or accidental. The victim said the appellant shot him during the course of an attempted robbery. The defense claimed that the appellant was in another part of town at the time of the shooting. Hence the charge was a correct statement of the law, and the trial judge was not in error in giving it to the jury. This is not to say, however, that a trial judge would be in error for refusing to give such a charge framed in the same language and form of the instant charge.

III

Appellant contends that the trial court erred in denying a pretrial evidentiary hearing in support of his motion to suppress an out-of-court photographic array. That motion was made at appellant's own request by way of incorporating into this trial all motions filed in a previous trial which was tried before the same judge only six days earlier. The trial court ordered that the lengthy pretrial evidentiary hearing on the motion from the first trial be incorporated in this record and overruled appel...