Boswell v. State

339 So. 2d 151, 1976 Ala. Crim. App. LEXIS 1587
CourtCourt of Criminal Appeals of Alabama
DecidedNovember 2, 1976
Docket3 Div. 636
StatusPublished
Cited by2 cases

This text of 339 So. 2d 151 (Boswell v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Boswell v. State, 339 So. 2d 151, 1976 Ala. Crim. App. LEXIS 1587 (Ala. Ct. App. 1976).

Opinion

TYSON, Judge.

Appellant was indicted for unlawfully killing Gertie Mae Boswell “by shooting her with a pistol.” The jury found the appellant guilty of murder in the second degree and fixed punishment at ten years imprisonment. The trial court then entered judgment, setting sentence in accordance with this verdict.

Joe Lewis Berry testified that on January 11, 1975, he was living at the home of his mother, Gertie Mae Boswell, on Auburn Street in Montgomery, Alabama. He stated that he was awakened that morning by the sound of a pistol shot and after walking into the living room of their home, he saw his stepfather, the appellant, Lee Boswell, standing over the body of his mother, Ger-tie Mae Boswell. He stated that the appellant had a pistol in his hand, which was pointed down, and that he asked the appellant what had happened, to which the ap[152]*152pellant replied, “She got shot in the arm.” He stated that he then saw that his mother was shot in the heart, that he picked up her body and placed her on a small couch in the room. He stated that a knife was lying on the floor, and that he picked it up and placed it on a table. He stated that the knife belonged to his stepfather. He stated that this occurred between 8:00 and 9:00 o’clock on the morning in question.

On cross-examination, Joe Lewis Berry testified that he observed blood on the hand of the appellant, and that he observed blood coming from the chest wound of his mother.

Robert L. Ingram testified that as a Montgomery Police Officer, he answered a call at 363 Auburn Street, Montgomery, between 8:00 and 9:00 on the morning of January 11, 1975. He stated that when he arrived he went into the living room of the home and observed the- victim, Gertie Mae Boswell, lying on a sofa. He stated that he spoke to Joe Lewis Berry and that he saw a pocket knife lying on the floor. He stated that when he spoke to the appellant, Lee Boswell, he stood up, and as he did so, a .22 caliber pistol fell from between his legs. He testified that he seized both weapons and placed the appellant under arrest. He testified that the .22 caliber pistol was a nine-shot revolver, and in his best judgment only one or two had been fired, and the rest were live rounds. He testified that he examined the body of Mrs. Boswell and noticed a wound in her left chest.

Mary Wisdom testified that she was a toxicologist with the Alabama Department of Toxicology. She stated that she examined the body of' Gertie Mae Boswell at 363 Auburn Street, Montgomery on the early morning of January 11, 1975. She testified that she found a wound on the left chest near the heart. She testified that she performed a blood alcohol test on the body of Mrs. Boswell, and the level of alcohol in the blood was .30. She stated that this level would indicate that the person would be highly intoxicated. She testified that she observed the pistol, and that it was a .22 caliber J. C. Higgins, Model 88, nine-shot revolver with the Serial No. 768080.

Dr. Richard A. Roper, State Toxicologist, testified that he performed the post-mor-tem examination of Gertie Mae Boswell at the Ross-Clayton Funeral Home. He stated that she was a black female, approximately forty-three years of age, and that the cause of death was hemorrhage and shock associated with a gunshot wound to the left chest near the heart. He stated that he removed a small caliber bullet from the body of Mrs. Boswell and turned it over to Mr. Charles Smith of the Department of Toxicology.

Charles Wesley Smith, State Toxicologist, testified that he received a .22 caliber pistol from Mrs. Mary Wisdom of his department, and that upon examination he determined the pistol had eight live rounds and one spent cartridge case. He testified that he made a comparison of the bullet that was turned over to him by Dr. Roper with bullets fired from the pistol in question, and that, in his opinion, the bullet was “possibly fired from the same weapon.”

Over objection, Dr. Smith was allowed to state the following concerning his examination of the pistol:

“ . . . [I]s that weapon likely to go off accidentally, in your opinion?
“A. This weapon would not be classified as one with a hair trigger, which is a common term. It actually has more than average pull on the trigger.
“Q. Has more than average pull on the trigger?
“A. Yes, sir. This is — by firearms standard this is a relatively cheaply made weapon. And, generally, on the cheaper weapons it gets harder and harder to pull the cheaper you go. Some of them are very hard to pull the trigger. This one is relatively firm. Even on single action it is not what you would call a hair trigger, although it takes considerably less force that way. But fired in the double action mode, I would say it would be difficult to fire it accidentally.”

The pistol in question was then admitted into evidence.

Jesse Holloway testified that he was a friend of the appellant, Lee Boswell. He [153]*153testified that he first saw the appellant on January 11, 1975, shortly after 7:00 in the morning on Holt Street in Montgomery. He stated that the appellant asked him to go with him, that he wanted to pick up his little boy. He stated that the appellant’s girlfriend, Pearlie Mae Jones, was also in the automobile. He stated that they drove out to the Mobile Heights section of Montgomery, and then drove back over to Auburn Street to the home of the appellant’s ex-wife, Gertie Mae Boswell. He stated that Pearlie Mae Jones was driving, that he was seated on the back seat, and that the appellant was seated on the right hand passenger side of the car. He stated that they pulled up in front of Gertie Mae Boswell’s home, that the appellant got out of the car and went into the house for just a few minutes. He stated that he did not hear anything, but in a few minutes, the appellant called to him to call an ambulance. He stated that he got out and went into the house and saw Gertie Mae Boswell lying on the floor. He said that he saw the appellant standing over her with a pistol, and that he picked up Mrs. Boswell and laid her on the sofa. He stated that he saw the appellant put a pistol in his pocket. He said that it was a .22 caliber pistol, and that the appellant had previously shown the gun to him. Under examination by the District Attorney, he stated, “that is it,” referring to the weapon seen on the morning of the homicide. He further stated that he and appellant had formerly worked together for the Coca Cola Bottling Company.

On cross-examination, he testified that the purpose of their driving out to the Mobile Heights section was to find the appellant’s little boy, and that when he did not find him, they decided to go over to Mrs. Boswell’s home to look for him.

Police Officer Robert L. Ingram was then recalled and he identified the knife which he found at Mrs. Boswell’s residence.

Charles Kennedy testified that he lived at 720 Erskine Street in Montgomery. He stated that his wife was a sister to Gertie Mae Boswell. He stated that on the morning of January 11,1975, the appellant came by his home between 8:30 and 9:00 o’clock and told him that he was looking for his son, Lee Andrew Boswell, Jr. He stated that the boy was also the son of Gertie Mae Boswell, and that the appellant was divorced from her.

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Related

Lockhart v. State
163 So. 3d 1088 (Court of Criminal Appeals of Alabama, 2013)
McClendon v. State
373 So. 2d 1249 (Court of Criminal Appeals of Alabama, 1979)

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Bluebook (online)
339 So. 2d 151, 1976 Ala. Crim. App. LEXIS 1587, Counsel Stack Legal Research, https://law.counselstack.com/opinion/boswell-v-state-alacrimapp-1976.