Wyatt v. State, 4 Div. 225

• Citation: 283 So.2d 675,51 Ala.App. 226
• Decision Date: 25 September 1973
• Docket Number: 4 Div. 225
• Parties: Johnny Lee WYATT v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 675

283 So.2d 675

51 Ala.App. 226

Johnny Lee WYATT v. STATE.

4 Div. 225.

Court of Criminal Appeals of Alabama.

Sept. 25, 1973.

Paul J. Miller, Jr., Phenix City, for appellant.

William J. Baxley, Atty. Gen., and Richard F. Calhoun, Asst. Atty. Gen., for the State.

HARRIS, Judge.

Johnny Lee Wyatt was convicted of murder in the first degree and his punishment fixed at life imprisonment in the penitentiary. He was represented in the trial court by appointed counsel and is now in this court with a free transcript. He is represented on appeal by another lawyer appointed by the court.

The body of the deceased, Pleas James, was found by a next neighbor on the morning of February 8, 1972, lying on his back near his chicken yard in rural Russell County, Alabama. In the late afternoon of February 7, 1972, this neighbor talked to the deceased on the telephone and later heard him sawing wood. She did not hear any disturbance at or around his house during the night. The next morning she received a telephone call from the daughter of the deceased making inquiry as to whether the neighbor had seen or heard her father the night before relating that she had called her father late the night before and having received no answer she was worried and apprehensive that something was wrong. Her father was seventy-five years of age and had a heart condition.

This neighbor used the telephone in the home of the deceased to call the Sheriff's Department to report his death and remained at the scene for the arrival of the Chief Deputy Sheriff of Russell County. She identified the deceased to the Chief Deputy and returned home.

The Chief Deputy took charge of the body and notified the coroner who came and examined the body. The coroner determined that the deceased had been shot twice, once in the right arm and once in the left side of his back. He had the body removed to a local funeral home. The Chief Deputy took numerous photographs of the locus in quo.

The State Toxicologist was summoned to perform an autopsy to determine the cause of death. After his qualifications were proven, the toxicologist testified that death resulted from hemorrhage and shock associated with multiple gunshot wounds to the body which penetrated the heart and damaged both lungs. The autopsy surgeon opened the chest cavity and upon exploration found and removed two bullets from the right lung of the deceased.

There was one eyewitness to this killing and at the time appellant was on trial, he was a convict in the penitentiary serving a twenty year sentence for the same crime. This convict, Arthur Raymond King, alias 'Rainbow', a witness called by the State, testified that he and appellant went to the home of the deceased in the late afternoon of February 7, 1972, for the purpose of burglarizing the home of decedent. 'Rainbow' was armed with a 410 gauge shotgun and appellant, alias 'Bull', was armed with a rifle. They hid in the bushes behind the hog pen and when the deceased came near them he was shot from ambush. 'Rainbow' said the 410 gauge shotgun jammed and wouldn't fire and that appellant shot the deceased twice with the rifle. We are thus confronted with the eyewitness testimony of an accomplice to murder and appellant's conviction cannot stand unless there is, in this record, corroborating testimony in the required degree to that given by this convict. This compels a recitation of all the testimony in some detail.

Arthur Raymond King, alias 'Rainbow' King, testified that he had known the appellant, Johnny Lee Wyatt, alias 'Bull' Wyatt, for about six years. They lived in the Fort Mitchell community of Russell County; that he and Wyatt got together around twelve o'clock noon on the day of the killing and they stayed together until late that night; that he knew Pleas James before his death and that he and Wyatt went to James' home on that day arriving in the late afternoon. They hid in the bushes by the hog pen and that while waiting they heard James chopping wood and singing. After he got through chopping wood, they saw him coming toward the hog pens, stopped and was looking around. From the record:

'A. And he looked over there, and he stood up there for awhile after he looked over there. Then that's the time Johnny Wyatt jumped up and shot. And the man, Pleas James, he broke and run; after the first shot was fired he broke and run. So that's the time I jumped up and Johnny Wyatt told me to shoot. So I didn't shoot. So he shot again. And the man's dog started barking. He was calling a name, and after we heard him calling the name a couple of times he don't call no more. So we went up and we left, see.'

King further testified that he did not shoot but that Wyatt shot twice. After the shooting they waited around to see if he was dead but they never went to James' home. About an hour later they left and went to the road and set up a roadblock. After setting up the roadblock, they carried the guns a distance of three or four miles and hid them in some thick grass and underbrush on the right-away of some railroad tracks. He stated that he and Wyatt hitchhiked four rides from Phenix City to a point within four miles from James' home. They walked the railroad tracks to the place where they had previously hid the shotgun and rifle. The rifle belonged to a Mr. Bradley and the shotgun belonged to a man by the name of Miller. After getting the rifle and shotgun, they walked a dirt road to James' house and finally got on a path near the hog pen and were in the bushes about ten minutes before the shooting started.

King further testified that Wyatt had a ski mask with him. It was 'like a tam you pull over your face--got an opening for your eyes and nose and mouth'; that while King was in jail another prisoner, Willie Lee Denson, who was an assistant jail cook and who had the run of the jail, brought him a sack that had some shorts and a handwritten note in it; that he sent for his father and gave him the note and that his father gave the note to the officer who in turn gave it to the Assistant District Attorney, Bob Faulk.

According to King, the first ride that he and Wyatt caught was at Putnam's Texaco Service Station on Broad Street in Phenix City. The car was driven by George Jackson and he carried them below Uncle Bud's store in the direction of James' house. They walked a short distance and caught another ride with John Henry Hartley who carried them to Mount Olive High School. At the school, they were picked up by Eddie B. Hoskins who carried them to a point near the Fort Benning Road. At this place they were picked up by a service man who was coming down the Fort Benning Road off the reservation. This ride carried them across the Uchee Bridge. King and Wyatt then walked on the property of Mr. Forbes Bradley to the place they had previously hidden the guns.

George Jackson testified that on February 7, 1972, he went to Columbus, Georgia to get some cloth and was on his way back to 165. He picked up two men whom he knew to be 'Rainbow' and 'Bull' and he carried them to a place below Uncle Bud's Grocery Store and they both got out of the car where he turned on another road leading towards his home.

John Henry Hartley testified that he picked up two hitchhickers on the afternoon of February 7, 1972, near Uncle Bud's store and let them out of his car at the Mount Olive High School. It was around four-forty-five p.m. when he left them. He made an in-court identification of Wyatt as one of the hitchhikers.

Eddie B. Hoskins testified that he lived on the Fort Mitchell Road and that on the afternoon of February 7, 1972, he picked up two hitchhikers and let them out of his car right below Mount Olive High School near the Fort Benning Road; that it was a few minutes before five o'clock when they got out of his car. He had known both men for some time but did not know their names. He was absolutely positive that Wyatt was one of the hitchhikers and that the other one was back in the witness room.

King was arrested first in connection with the murder of James. He signed a waiver and made a statement in which he implicated Wyatt. On the strength of that statement Wyatt was arrested without a warrant and while being booked at the county jail a routine search of his person was conducted and a ski mask was found on his belt. It was brown and red and had holes for the eyes, nose and mouth as had been described to the officers by King. It was properly admitted in evidence.

When King and Wyatt were arrested they were wearing crepe sole shoes. Plaster casts of footprints or shoe prints on the path by James' hog pen were made and turned over to the Toxicologist along with the crepe sole shoes. An examination and comparison was made by the Toxicologist who expressed the opinion that the casts were consistent with either or both pair of shoes.

King carried the officers to the place where the guns were hidden. After proper predicate, these guns were admitted in evidence without objection. The rifle was carried to the Toxicologist who test-fired it and made a microscopic comparison of the bullets which he removed from the body of Pleas James with the bullets which he test-fired and expressed the opinion that both bullets from the body of James were fired through the .22 caliber rifle identified as State's Exhibit 10.

Herman King, the father of Arthur Raymond King, testified that his son sent for him to come to the Russell County jail where he gave him a handwritten letter or note which was subsequently admitted in evidence as State's Exhibit 15. Herman King carried this exhibit ans showed it to Chief Deputy Griffith after which he carried it home to show his wife. After his wife read the letter or note, he returned it to the Sheriff's office. He identified the exhibit in court and stated it was in the same condition as it was when his son gave it to him.

Willie Lee Denson, a witness for the State, testified that he was a...