People v. Dixon

SHINN, P. J.

In an information defendant Odell David Dixon was charged with the murder of Henry Albert. He was also charged with four prior felonies. Defendant admitted the four prior felonies, but pleaded not guilty to the charge of murder. After a trial by jury, defendant was found guilty of murder in the second degree. The appeal is from the judgment of conviction.

[89]

Early in the afternoon of May 7, 1960, defendant and one Whitaker had an argument in the latter’s room. Defendant struck Whitaker in the face and threatened him with an open knife. Whitaker seized a table and used it for protection. One Ryan came into the room and attempted to stop the quarrel. Defendant threatened him with a knife and both Ryan and Whitaker escaped from the room. In the evening defendant and Whitaker separately went to the Hat Café. Bobby Charles and Henry Albert came into the bar. Defendant was not acquainted with either of them. Albert sat down beside Whitaker and asked him for a cigarette. Defendant objected to Whitaker’s giving Albert a cigarette, stating that he had purchased them for Whitaker and not for Albert and Albert asked “What is wrong with you?” Later there was a conversation between Albert, Charles and defendant as to who would purchase the next drink. Defendant drew a knife on Albert who stepped back still saying “What is wrong?” Beecham, the bartender, interceded and told defendant to put away the knife, which he did. It was the same knife with which defendant had previously threatened Whitaker. Albert left the bar and was gone 5 or 10 minutes. When he returned, the bartender said he did not want any trouble in the bar; defendant and Albert replied that there would be no trouble, shook hands and apologized. Charles Warren, who was both bartender and bouncer, was present at the time. Albert and Charles left the bar and sat down in a booth. Thirty or forty minutes later Whitaker, followed by Albert, walked down a hallway 30 or 40 feet to the restroom. Some five minutes later defendant walked down the hallway and met Whitaker and Albert as they were returning from the restroom. Defendant was holding an open knife, which he exhibited and stated: “This is it.” Whitaker continued on and sat down at the bar. Defendant and Albert returned to the restroom. Whitaker heard a commotion, heard defendant’s voice, and something falling. He reported that fact to Beecham who called Warren. When Warren entered the restroom he found Albert and Charles. Albert, who was bleeding profusely, was leaning over the urinal, supported by Charles. Warren asked defendant to call the police and an ambulance and defendant replied that he would call the police but that he would not call an ambulance for the “son of a bitch.” The police were called. Defendant left the bar and was walking rapidly away on the street when