Storie v. State, 8 Div. 383

CourtAlabama Court of Criminal Appeals
Citation390 So.2d 1179
Docket Number8 Div. 383
PartiesWinfred Taft STORIE v. STATE.
Decision Date28 October 1980

Page 1179

390 So.2d 1179
Winfred Taft STORIE
8 Div. 383.
Court of Criminal Appeals of Alabama.
Oct. 28, 1980.
Rehearing Denied Nov. 25, 1980.

Ralph E. Slate, Decatur, for appellant.

Charles A. Graddick, Atty. Gen., J. T. Simonetti, Jr., Asst. Atty. Gen., for appellee.

TYSON, Judge.

Winfred Taft Storie was indicted for the first degree murder of one James Otis Cotton by shooting him with a pistol. At trial he was found guilty of murder in the second degree, and punishment was fixed by the jury at thirty-seven years in the state penitentiary. His subsequent motion for a new trial being overruled by the trial court, Storie brings this appeal in forma pauperis.

The first witness for the State was John Kilbourne, an employee of the State Department

Page 1180

of Forensic Sciences stationed in Florence, who testified that, on October 24, 1978, he had had occasion to perform an autopsy on the body of a seventy-four year old white male identified to be James Otis Cotton. Mr. Kilbourne stated that his examination revealed the presence of trauma consistent with a gunshot wound to the left side of the decedent's face, and further testified that he had ascertained the entry wound to be just to the left of decedent's left nostril, and the exit wound to be at the base of the neck at a downward angle from the entry wound. Mr. Kilbourne concluded from his examination that Mr. Cotton had bled to death as the result of a single gunshot wound, which had caused the severing of the left carotid artery.

The witness testified on cross-examination by the defense that he had been unable to locate traces of gunpowder around the wound as would be consistent with a close range gunshot, and estimated that the shot would have had to have been made within a range of four feet to deposit such a residue. He further stated that he had not located a slug in Mr. Cotton's body, and that death had ensued very rapidly after the injury to the carotid artery.

Brent Allen Wheeler, a criminalist with the same department in Huntsville, stated that he had received training and experience in ballistics analysis. He identified several items of ammunition and a pistol as having been received by him from investigator Harry Perry of the Morgan County Sheriff's Department on October 24, 1978; appellant stipulated that the pistol was his. Mr. Wheeler further testified that among the items were an expended cartridge and a slug, and he compared these items to ammunition test-fired through appellant's pistol, concluding that appellant's pistol had fired the slug retrieved by Investigator Perry on the night in question.

Wayne Henry Hughes, a Decatur resident, testified that, on the night of October 23, 1978, he had gone to a "party" being held in a house owned by one Lindsey around 8:30 or 9:00 o'clock, and that there were a number of people present eating barbeque, drinking and "shooting dice." Mr. Hughes stated that he remained almost the entire night in the kitchen area, where beer and whisky were being kept and dispensed, and that James Otis Cotton was present as well, seated in a chair at a table. According to the witness, appellant arrived some time later and at some point ended up in the kitchen with Mr. Hughes and James Cotton. Appellant and Cotton began "arguing about who could out draw who and who could shoot who and ... what gun was the best gun to have ...," although, according to Mr. Hughes, "they might be angry a second and then just talking" (R. 59). At one point during this exchange, appellant produced a .45 caliber pistol from a shoulder holster, emptied the ammunition out of the gun and placed one of the bullets between his teeth. He then reloaded the pistol, returned it to its holster, and challenged Cotton that, "If you think you can outdraw me, just go ahead" (R. 60). Mr. Hughes stated that he never saw Cotton pull a weapon, nor did he think that Cotton was armed at the time. The witness further testified that he then left the room and had only been gone for a few minutes when he heard a sound "like a firecracker going off." Upon returning to the kitchen, he found Cotton still seated in the chair with his head on the table and appellant seated, but holding his pistol pointed at the ceiling. Mr. Hughes stated that appellant said, " 'Wayne, I shot him. I didn't mean to but I shot him,' " and " 'The old man made me do it ... I didn't mean to do it ... I shot him' " (R. 63-64). Mr. Hughes then told appellant to place the pistol on the table, which appellant did, and the Sheriff's Department was summoned.

Mr. Hughes acknowledged on cross-examination that Mr. Cotton had been a good friend of his, and that appellant had worked for his father, but that he did not think appellant and Cotton had previously known each other. He further stated that they had all been drinking, and that both appellant and Cotton were "pretty well intoxicated," but he had not seen them fight that night before the shooting. Mr. Hughes also testified that appellant "more or less

Page 1181

seemed like he was numb" (R. 68), or in a "state of shock" over the shooting, but that he remained at the house to await the arrival of the sheriff.

Investigator Harry Perry of the Morgan County Sheriff's Department testified that, in the early morning hours of October 24, 1978, he had been directed to proceed to the scene of a shooting, and that on arrival he found a victim lying underneath a table in the kitchen. Other persons present were Kenneth Lindsey, the owner of the house, Dewey Hughes, Wayne Hughes and appellant, and there was a pistol lying on the table. Investigator Perry stated that he subsequently turned this pistol over to Brent Wheeler for examination, and in the course of his investigation located a spent cartridge on the kitchen floor and a slug in an adjoining bathroom, both of which he also gave to Wheeler. According to the witness, the slug pierced a wall separating the kitchen and bathroom, and then struck a "pipe chase" in the bathroom. Investigator Perry stated that he conveyed the appellant to the jail, where he was formally arrested and searched, the search disclosing a holster.

On cross-examination, Investigator Perry testified that, though he had not seen any evidence of dice shooting at the scene of the shooting, he had noticed the presence of liquor bottles and the odor of alcohol about the appellant. While he was sure that appellant had been drinking, Investigator Perry stated that, when he conversed with him at the jail, he did not have any problems with slurred speech or the like.

At this point, the State rested, and the defense then rested without calling any witnesses. The appellant did not take the stand.


The appellant first contends, as he did unsuccessfully on his motion for new trial, that the trial court erred in failing to instruct the jury that a killing must be intentional to support a conviction for either second degree murder or first degree manslaughter. It does not appear that counsel for appellant requested that such a charge be given, and it is evident that when the court had completed its oral charge and inquired of the parties, "Is there anything else by either party now," counsel for appellant replied, "No, sir, Judge" (R. 106, 107).

"Exceptions to the oral instruction of the court must be taken in the presence of the jury and before the jury...

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7 cases
  • Vinzant v. State
    • United States
    • Alabama Court of Criminal Appeals
    • November 13, 1984
    ...issues together. Affidavits of jurors are incompetent when submitted for the purpose of impeaching the jury's verdict. Storie v. State, 390 So.2d 1179, 1184 (Ala.Cr.App.), cert. denied, 390 So.2d 1184 (Ala.1980). The verdict of a jury may not be impeached by testimony or affidavits of juror......
  • Parham v. City of Opelika, 5 Div. 598
    • United States
    • Alabama Court of Criminal Appeals
    • April 20, 1982 exception or made no objection to the above alleged errors. Thus, nothing is preserved for our review. Travis, supra; Storie v. State, 390 So.2d 1179 (Ala.Cr.App.), cert. denied, 390 So.2d 1184 (Ala.1980), Yates, supra; Sprinkle v. State, 368 So.2d 554 (Ala.Cr.App.1978), cert. denied, 36......
  • Casey v. State, 2 Div. 297
    • United States
    • Alabama Court of Criminal Appeals
    • June 30, 1981
    ...not believe that sufficient evidence was shown to indicate advance agreement to abide by the result of the averaging. See Storie v. State, Ala.Cr.App., 390 So.2d 1179, cert. denied, Ala., 390 So.2d 1184 (1980); Collins v. State, Ala.Cr.App., 365 So.2d 113, cert. denied, Ala., 365 So.2d 116 ......
  • Pinkard v. State, 8 Div. 490
    • United States
    • Alabama Court of Criminal Appeals
    • October 6, 1981
    ...makes no exceptions or objections to the oral charge, this court cannot review the issue of asserted jury instructions. Storie v. State, Ala.Cr.App., 390 So.2d 1179, (cases cited therein), writ denied Ex parte Storie, Ala., 390 So.2d 1184 Although appellant did not raise the issue on appeal......
  • Request a trial to view additional results

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