Wright v. State

• Decision Date: 27 February 1973
• Docket Number: 8 Div. 272
• Citation: 274 So.2d 95,49 Ala.App. 539
• Parties: David WRIGHT v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 95

274 So.2d 95

49 Ala.App. 539

David WRIGHT v. STATE.

8 Div. 272.

Court of Criminal Appeals of Alabama.

Feb. 27, 1973.

Thomas & Worley, Huntsville, for appellant.

William J. Baxley, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State.

TYSON, Judge.

The indictment against David Wright charged him with the felonious assault with a shotgun on James Goolesby, a deputy sheriff of Jackson County, Alabama, said deputy being in the performance of his lawful duties. ¹ The Jury found the appellant guilty as charged, and judgment and sentence fixed punishment at ten years imprisonment.

Deputy Sheriff James Goolesby testified that on March 9, 1972, he was on routine patrol in the Town Creek Community in Jackson County, Alabama, at about 2:00 p.m., being in uniform, and driving a sheriff's vehicle. He stopped to examine a pasture area in which several days earlier he had found some unlawful beer and whiskey hidden. After checking the area, he started back to his car, and, from a wooded area approximately fifty to seventy-five yards away, he observed the appellant, David Wright. He heard a loud shot and immediately felt the side of his face, shoulder and arm 'burning real bad.' The shot came from the direction where he saw the appellant in the woods. Deputy Goolesby struggled to his car, got the radio, and called for help. He stated that a fellow deputy answered his call, and that he spent four days in the hospital being treated for the pellet wounds.

On cross-examination, the deputy was asked if he saw a shotgun, and he stated that he did not, but that he saw the appellant from the waist up, that he had seen him many times and recognized him in the woods, and that he did not have a hat on. He was further asked if he had not been out two or three days previously and picked up some two cases of beer and whiskey and a case of Vodka in this area. He replied that he had done so but that he had turned all of this in to the sheriff's office. He was also asked on cross-examination if he had not arranged for C.W. 'Big Head' Johnson to shoot at him that day near the pasture, or had they not made an arrangement the previous day, and were they not splitting up the money from the sale of the beer and whiskey. To this Deputy Goolesby replied that he had turned in all beer and whiskey to the sheriff's office, and that 'If I had known there was going to be any shooting I wouldn't have been up there'; that he had gone almost through the woods and was almost back to the car at the time of the shooting, and that the pellets were 7 1/2 size shots, some twenty-seven having lodged in his head and neck, and ten or twelve in his shoulder and chest.

The State next presented the testimony of Lt. Marvin Bryant, a State investigator who made photographs of the appellant on March 11, 1972, at the Jackson County Hospital, depicting and showing Deputy Goolesby's condition. These were admitted in evidence.

The State next presented the testimony of C.W. 'Big Head' Johnson, who testified that on March 9, 1972, he, along with Roy Gamble, Jimmy Middleton, and 'Juanita somebody,' was at the home of the appellant, David Wright, drinking beer; that all of them saw Deputy Goolesby drive by up the road in his car, and they heard David Wright say, 'There is that God Damn Goolesby . . . if he doesn't stop getting my beer and whiskey I am going to have to kill him.' A few minutes thereafter he saw David Wright leave the house with a shotgun, and four or five minutes later heard two shots from a thicket down in the woods. When the appellant returned to the house he handed the gun to Roy Gamble and said get rid of it. He further stated that the appellant made the comment that he had gotten rid of the shotgun hulls. On cross-examination Johnson admitted that he had previously been convicted of grand larceny, and that he and the others were drinking heavily at the time of the occurrence, but that he was not 'plumb drunk.' He denied calling Deputy Goolesby and telling him where the beer and whiskey had been hidden which was picked up two or three days earlier, or that there was any arrangement between himself or Goolesby, or any other law enforcement officer concerning the selling of beer and whiskey and dividing the money. He also denied that he had ever fired any weapon at Goolesby or had any such plan to shoot at Deputy Goolesby or any other deputy.

Witness Roy Gamble stated that he had been at the appellant's house on Thursday, March 9, 1972, at about 2:00 p.m., and all of them saw Deputy Goolesby drive by in his car. He stated that a few minutes thereafter, he saw the appellant go out of the house with a shotgun and return a short time later; that he handed the shotgun to him and stated for him to get rid of it and that he would let him know what to do later. He stated that he took the shotgun over to C.W. Johnson's house and hid it under it. The following day when Sheriff Collins came out to investigate, he gave the gun to the Sheriff. He stated that in addition to the appellant and himself, Jimmy Middleton, Bill Porter, and C.W. 'Big Head,' or Dub Johnson had been there, all drinking beer, and perhaps Juanita Harbin, or Eddie Sanders had come by for a short time.

Sheriff Collins testifid that on March 10, 1972, he had gone to the house of Dub Johnson with Roy Gamble, and that a shotgun had been turned over to him by Roy Gamble at that time.

Deputy Sheriff Bobby Saint testified that on Thursday afternoon, March 9, 1972, he had assisted in the investigation of the shooting of Deputy Goolesby and found a spent shotgun shell 'about 150 feet behind David Wright's house.' He stated that he smelled it and noticed that it had recently been fired.

The State next called Keith Smith, who testified that he was a city policeman at Scottsboro, Alabama, and had gone with Deputy Bobby Saint to investigate the shooting of Deputy Goolesby, and that he had found a recently fired sixteen-gauge 7 1/2 shotgun shell which he and Deputy Saint turned over to Sheriff Collins; that this was found a short distance from appellant's house, about 125 feet therefrom.

Lt. Marvin Bryant, State Investigator, was then recalled and testified that he took the two shotgun shells in question to the State Toxicology office.

The State next called Brent A. Wheeler, who testified that he was employed by the Department of Toxicology and Criminal Investigation of the State of Alabama, and that Lt. Marvin Bryant had delivered two shotgun hulls, sixteen-gauge, No. 7 1/2, to him for investigation. He further stated that he test fired the shotgun, which Sheriff Collins turned over to him, and that the spent hulls came from the shotgun in question.

Deputy Goolesby was then recalled to the stand and testified that he was unable to drive his vehicle, and the first officer to arrive was Deputy Troy Ferguson, who took him to the hospital. On cross-examination, he was asked if he had sworn out warrants for Will Matthews, C.W. Johnson, Jimmy Middleton, Roy Gamble, or David Wright. He stated that he was in the hospital and had not sworn out warrants on any of them.

The State then called Deputy Troy Ferguson. He testified that he was the first officer to arrive at the scene on March 9, 1972, when Deputy Goolesby was shot, and that a few minutes after arrival, Sergeant Bean from Huntsville came over with some dogs; that they tracked some footprints toward the house of the appellant, David Wright. He stated that all occupants of the house were arrested that afternoon. He stated that two other officers found two spent shotgun shells in some woods under some vines where the dogs had tracked toward the appellant's house.

Sheriff Collins was then recalled to the stand, and he testified that he had talked with the appellant in his office, and after giving him a full 'Miranda warning,' and in the presence of Lt. Bryant and Deputy James Pell, the appellant had made an oral statement that the shotgun was his, and that he had bought it from Allie Grayson's grandson. He stated that the appellant further admitted that he had been drinking heavily that afternoon and had taken some diet pills.

Appellant presented the testimony of one Eddie Sanders, who stated that he had been in the appellant's home on March 9, 1972, shortly after 2:00 p.m., and that there were several people there drinking beer. He stated that he saw C.W. 'Big Head' Johnson leave the house with a shotgun in his hand, having left the house about three to five minutes after a deputy sheriff's car had passed by, and that he heard the gun fire twice and did not see anyone come back to the house. On cross-examination, he admitted that he had been at the appellant's home several times when the place had been raided by county officers and beer and whiskey found.

Appellant then presented the testimony of Jimmy Middleton, who testified that he had seen 'Big Head' Johnson on the afternoon of March 9, 1972, and heard him state in his presence that 'I shot twice.' Jimmy Middleton was then asked on cross-examination about a statement given on March 9, 1972, at about 7:00 p.m. to Sheriff Collins and...