Andrews v. State, 4 Div. 491

• Court: Alabama Court of Criminal Appeals
• Citation: 344 So.2d 533
• Docket Number: 4 Div. 491
• Parties: James ANDREWS v. STATE.
• Decision Date: 04 January 1977

Page 533

344 So.2d 533 James ANDREWS
v.
STATE. 4 Div. 491. Court of Criminal Appeals of Alabama. Jan. 4, 1977.
Rehearing Denied Feb. 1, 1977.

Page 534

Grady O. Lanier, III, Andalusia, for appellant.

William J. Baxley, Atty. Gen., and Milton C. Davis, Asst. Atty. Gen., for the State.

BOOKOUT, Judge.

Assault with a deadly instrument on a peace officer engaged in active discharge of his lawful duties; sentence: twenty years.

In the early morning hours of Ebruary 7, 1976, two Opp police officers, Hyrum W. Turner and Lawrence Nelson, were called to a local drive-in restaurant to investigate a reported disturbance. They heard a shot and went to a window of the restaurant. There they saw the appellant with a gun. Turner told the appellant to drop the gun and come outside. The appellant pointed the gun in their direction, and they stepped away from the window.

Turner and Nelson then took refuge around behind the corner of the building. Turner said appellant ran out of the building and fired a shot 'toward the highway.' The testimony on direct and cross-examination is cloudy as to the direction in which the shotgun was fired. Witness Turner was pointing out locations on a blackboard, not shown in the record, which makes the actual locations of the officers difficult for us to determine. In any event, Turner's testimony places him and Nelson close together when the appellant discharged the gun:

'Q. Where was Officer Lawrence Nelson?

'A. He was standing around behind the building beside me.'

From the State's proof, we believe the jury could have found beyond a reasonable doubt that the appellant fired a shotgun in the general direction of Both officers. Thus, the evidence established a prima facie case against the appellant of assaulting the peace officers with a deadly weapon during the performance of their lawful duty.

The appellant contends his conviction should be reversed due to the trial court's alleged error in denying the appellant's motion to quash the indictment.

Omitting the formal parts, the indictment reads as follows:

'THE GRAND JURY OF SAID COUNTY CHARGES, THAT BEFORE THE FINDING OF THIS INDICTMENT, JAMES ANDREWS, WHOSE NAME IS UNKNOWN TO THE GRAND JURY OTHER THAN AS STATED, DID INTENTIONALLY AND UNLAWFULLY COMMIT AN ASSAULT WITH A DEADLY INSTRUMENT, TO-WIT: A SHOTGUN, UPON A PEACE OFFICER OR OTHER LAW ENFORCEMENT OFFICER OF THIS STATE OR ANY POLITICAL SUBDIVISION OF THIS STATE, WHILE SAID OFFICER WAS ENGAGED IN THE ACTIVE DISCHARGE OF HIS LAWFUL DUTY OR DUTIES.'

The above indictment does not state the name of the peace officer who was intentionally or unlawfully assaulted. From the evidence presented at trial, the jury could have concluded that the appellant's one shot was an assault against either or both Turner and Nelson. The trial court charged the jury that in order to find the appellant guilty, they must believe beyond a reasonable doubt that he assaulted Turner.

I

The State contends that a demurrer, not a motion to quash, is the normal procedure to raise defects going to the validity of the indictment. We agree. McKinney v. State, 53 Ala.App. 271, 278 So.2d 719, cert. denied 291 Ala. 789, 278 So.2d 724 (1973). However, due process dictates that a defect associated with an essential element of the

Page 535

offense which leaves the accused unaware of the nature and cause of the charge against him cannot be waived by failure to timely demur. Hornsby v. State, 94 Ala. 55, 10 So. 522 (1891); Flippo v. State, 49 Ala.App. 138, 269 So.2d 155 (1972); Jeter v. State 1976), Ala.Cr.App., 339 So.2d 91; Nelson v. State, 50 Ala.App. 285, 278 So.2d 734 (1973); Pendleton v. State, 57 Ala.App. 452, 329 So.2d 140 (1976), remanded on other grounds 295 Ala. 325, 329 So.2d 142, 144.

An indictment to be sufficient must meet Inter alia the following two criteria as set forth in Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962) and in Gayden v. State, 38 Ala.App. 39, 80 So.2d 495, affirmed 262 Ala. 468, 80 So.2d 501 (1954--55):

(a) The indictment must contain the elements of the offense intended to be charged and sufficiently apprise the defendant of what he must be prepared to meet; and

(b) In case other proceedings are taken against the defendant, the record must show with accuracy to what extent he may plead of former acquittal or conviction.

Criteria (b), as to Future prosecutions, is satisfied as the entire record of the trial proceedings here could be relied upon by the appellant. Clay v. United States, 326 F.2d 196 (10th Cir. 1963). But, from reading the indictment, one could not determine if it charges an assault against some officer which had previously been adjudicated. (This would necessarily have to include an assault on Any peace officer of the state or Any political subdivision of the state committed Any time within the statute of limitations.) The defendant has no right to discovery, such as a bill of particulars or post-indictment preliminary hearing. The indictment is all the notice he gets of what he is called upon to defend against. See: Chief Justice Heflin's dissent in Adkins v. State, 291 Ala. 695, 287 So.2d 451 (1973).

Criteria (a) was not satisfied in the instant indictment, therefore, the appellant's conviction must be reversed and remanded. Lashley v. State, 28 Ala.App. 86, 180 So. 720, cert. denied 236 Ala. 28, 180 So. 724 (1938). The appellant could not know from the indictment the name of the peace officer he was charged with assaulting. There is nothing contained in the record which would indicate that the appellant knew any of the officers at whom he allegedly fired until the State put on its case at trial. Indeed from the record, it could be argued that the appellant did not know who he was charged with assaulting until the trial court gave its oral charge to the jury at the end of the trial. It cannot be seriously contended that the indictment sufficiently apprised the appellant of what he must be prepared to defend against.

The State seems to argue that the phrase, 'peace officer or other law enforcement officer of this state or any political subdivision of this state,' was sufficient to apprise the appellant of whom he allegedly assaulted. This argument is analogous to saying that...