Tunstill v. State, 8 Div. 613.

• Decision Date: 02 March 1948
• Docket Number: 8 Div. 613.
• Parties: TUNSTILL v. STATE.
• Court: Alabama Court of Appeals

34 So.2d 857

33 Ala.App. 460

TUNSTILL v. STATE.

8 Div. 613.

Alabama Court of Appeals

March 2, 1948

Rehearing Denied March 16, 1948.

Grady J. Long, of Hartselle, for appellant.

A A. Carmichael, Atty. Gen., and L. E. Barton, Asst. Atty Gen., for the State.

HARWOOD Judge.

This appellant was indicted for and by a jury convicted of the offense of robbery.

The evidence introduced by the state tended to show that on 16 October 1946 Mr. Sam Drinkard, a farmer living in the southern part of Morgan County, came to Decatur for the purpose of buying a truck. He had with him about $995 in a wallet in a buttoned pocket of his overalls.

During the afternoon while walking on the streets of Decatur he was hailed by the appellant and one Crayton Morrow, who greeted him with the remark: 'Hello old fellow. Where are you going?' They entered into conversation with him and he told them about his search for a truck. He did not at first recognize the pair, but later realized he had seen the appellant two or three years before when appellant drove a truck out in his section of Morgan County. Drinkard expressed his intention of getting something to eat and invited the appellant to accompany him to a restaurant. Both men ate, and Drinkard paid the bill and in appellant's presence removed a bill from his wallet with which to pay the check.

The appellant then told Drinkard he had a room rented in Decatur and invited him to the room for a drink. They went to appellant's room which was over a cafe. When they entered the first floor the appellant disappeared for a moment, then returned and he and Drinkard went to the men's room on the first floor. There appellant produced a half pint bottle of whiskey and the two proceeded to drink about half of it. They then walked up the stairs and entered room No. 7, where they found Morrow seated on the bed.

The three men engaged in a friendly conversation. Appellant was on one side of Drinkard in a reclining position, resting on his elbow, and Morrow sat on appellant's other side. Morrow announced he had to leave, rose from the bed and walked over toward a window. He was in his shirt sleeves, and had his hands in his trouser pockets.

At this point we now quote from Mr. Drinkard's testimony:

'A. When Morrow got up and turned around and turned back to him the sun was shining up through this window. It was getting pretty late in the evening; anyhow, it was shining in at the window; and when he got up and turned around that way to me, I never did know no more. I didn't know what went with the boys; that was the last thing I ever knowed until I come to that night and went to the police station.

'Q. Do you know or do you not know--do you know whether anybody hit you or whether they didn't? A. I thought there was somebody hit me, but I didn't see them.

'Mr. Long: We object to what the witness thought, and move to exclude the testimony.

'Court: That isn't evidence, gentlemen.

'Q. Do you remember feeling any pain at that time, or any---- A. No, I don't.

'Q. ----or any lick? A. No, I don't. The only pain I had, when I come to my head was hurting; and I just reached up there and got it and reached here and felt and my pocket-book was gone.'

When Drinkard came to he was in a room across the hall from the one he had originally been in. He had a wound on the left side of his head above the eye and this wound bled profusely.

Dr. N. H. Vinson testified that he attended Mr. Drinkard two days after this occurrence. He found a cut about an inch long over the corner of the left eye. The wound had become infected at this time. X ray pictures revealed two minute fractures in the skull under this wound.

The doctor further testified that a wound of this nature would bleed profusely at the time it was inflicted, and that the blow causing it could also bring on a concussion of the brain.

The remaining state witness was Mrs. Wille Mae Berryman. Mrs. Berryman was operator of the rooming house here involved. She testified that she first saw Mr. Drinkard about three o'clock on the afternoon of the day of this alleged robbery. Drinkard came to the rooming house in a taxi. As he walked in he was staggering.

She next saw Drinkard when he, Morrow, and the appellant came out of Room No. 7 about seven P.M. All three appeared to be drunk. Morrow and appellant were assisting Drinkard. She was in the upstairs hall at this time. No injuries or blood were on Drinkard's face at this time. When the two reached the stairway Drinkard began to fall down the stairs. The appellant made an effort to hold him, but both Drinkard and appellant fell all the way to the bottom of the stairs.

A man named Orr, who also roomed at Mrs. Berryman's, with the assistance of appellant, brought Drinkard back up the stairway, and placed him, at Mrs. Berryman's instructions, in a vacant room across the hall from Room No. 7. After placing Drinkard in this room Orr and the appellant left them there, closing the door as they departed.

As he was being assisted back up the stairs after his fall Mrs. Berryman saw that Mr. Drinkard's face was now bloody.

Mrs Berryman did not see Drinkard that night after he was placed in the room, nor did she see the appellant and Morrow until they came to...