Fitzpatrick v. State

Court of Criminal Appeals of Alabama

Fitzpatrick v. State

243 So. 2d 389, 46 Ala. App. 405, 1970 Ala. Crim. App. LEXIS 436

CourtCourt of Criminal Appeals of Alabama

DecidedNovember 17, 1970

Docket6 Div. 46

StatusPublished

This text of 243 So. 2d 389 (Fitzpatrick 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

Fitzpatrick v. State, 243 So. 2d 389, 46 Ala. App. 405, 1970 Ala. Crim. App. LEXIS 436 (Ala. Ct. App. 1970).

Pincite

Opinion

CATES, Judge.

Assault with intent to murder: sentence, twelve years.

I

We abstract from the State’s brief:

“ * * * Officer Wigley went out into the street and tried to persuade Fitzpatrick to give up the shotgun. At this time Fitzpatrick stuck the shotgun to within six inches of the Officer’s stomach and began to fumble with the hammer, trying to cock it (R. 35). Officer Smith, one of the three policemen at the scene, fired a warning shot to attract Fitzpatrick’s attention (R. 36 & 50). When the shot was fired, Fitzpatrick pointed the shotgun toward Officer Smith who was some thirty feet away (R. 50). At this point all the police officers fired at Fitzpatrick, wounding him (R. 37-50). During this period Fitzpatrick had his finger on the trigger and appeared to be trying to cock the shotgun (R. 37-49). After Fitzpatrick was wounded a live shell was found in the chamber of the weapon and the hammer was found to be stiff and difficult to cock (R. 38 & 42).”

In Crawford v. State, 86 Ala. 16, 5 So. 651, Stone, C. J., wrote:

“* * * a loaded gun, discharged or attempted to be discharged at another, within carrying distance, is a deadly weapon, and, unexplained, raises the presumption of malice aforethought. * * *»

Language of similar import finds approval in Sparks v. State, 261 Ala. 2, 75 So.2d 103, in referring to Dobbins v. State, 15 Ala.App. 166, 72 So. 692.

II

In brief, appellant claims error in the admission over objection of testimony that earlier in the morning of concern Fitzpatrick had tried to choke his mother and also had been walking around her home with a butcher knife in his pocket.

We think this was relevant to show the necessity for the police to be in the neighborhood.

We have searched the record as demanded by Code 1940, T. 15, § 389, and conclude that the judgment below is due to be

Affirmed.

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