On November 1, 1962, the appellant, Jimmie Brannon, was indicted by the Grand Jury of Geneva County, Alabama, for the offense of assault with intent to murder Deputy Sheriff L. D. Sizemore. He was tried, convicted, and sentenced by the court to a term of five years in the penitentiary and it was ordered by the court that the sentence be suspended pending the determination of the appellant's application for probation. On January 29, 1964, appellant gave notice of appeal to this court.
According to the testimony of C. W. Hall, at about midnight of May 5, 1962, when he attempted to turn on to the Kalamazoo Road in the City of Samson, he saw a "city car" chasing another car and the car that was being chased almost hit the front of his car. He further testified that he changed his direction and "got into the chase" and at about the shirt factory or the B & B Drive-In, "they shot at the patrol car twice". He stated that he was about seventy-five yards behind and that he dropped back when the first shot hit the front of the patrol car around the windshield. Hall testified also that when the second shot was fired he used his radio to get in touch with Florida law officers and was able to contact Deputy Sheriff L. D. Sizemore who stated that he was between Hall and the Florida line. Hall told Sizemore by radio that he was chasing a car that shots had been fired from and gave him a description of the car.
Sizemore testified that he was standing outside his patrol car when someone in the car being chased by Hall shot at him as it passed by. He then chased this car toward the Florida line to where there was a blinker light on Highway 81. Hall testified that he did not see the shot fired at Sizemore and that his car was running about 100 miles per hour in the chase.
Edna Ruth Watson stated that she went to a dance at Samson, Alabama, on May 5, 1962, with John Tommy Arant and several others and that Arant got drunk and had a fight with the Samson police and that they locked him up. Miss Watson was accused by Circuit Solicitor Boswell of becoming a hostile witness toward the State and evading several questions asked her by the solicitor. The court granted permission for the solicitor to proceed with his examination of Miss Watson as a hostile witness. Witness Watson admitted that the boy with them had a shotgun and shells and that he went to a house and got more and that he did some shooting. Miss Watson also admitted that the same person gave her $15.00 to get Arant out of jail and that
Mr. J. E. Phillips testified, in part, as follows:
No evidence for the defense was offered and, after the State rested its case, the defense made a motion to exclude all of the evidence offered by the State upon the grounds that (1) "evidence insufficient to convict" and (2) "the State failed to carry the burden imposed upon it by law." The motion was denied. The jury, upon consideration of the evidence, found the appellant guilty as charged and the court thereafter sentenced him to the penitentiary for a period of five years.
The evidence presented against appellant by the State of Alabama was circumstantial and the appellant contends that such was insufficient for a conviction because of the lack of direct testimony that he committed the crime. It is well recognized that the guilt of a defendant may be established by circumstances as well as by direct evidence. Lowery v. State, 38 Ala. App. 505, 88 So.2d 854; Cunningham v. State, 14 Ala.App. 1, 69 So. 982; White v. State, 26 Ala.App. 245, 157 So. 263; McDonald v. State, 165 Ala. 85, 51 So. 629.
We feel that the evidence was sufficient for the trial court to deny the appellant's requested affirmative charge and his motion to exclude. Authorities, supra.
This cause is due to be and the same is hereby
CATES, J., dissents.