Beverly v. State
| Decision Date | 14 September 1967 |
| Docket Number | 7 Div. 766 |
| Citation | 281 Ala. 325,202 So.2d 534 |
| Parties | Franklin BEVERLY v. STATE. |
| Court | Alabama Supreme Court |
Irby A. Keener, Jr., Centre, for appellant.
MacDonald Gallion, Atty. Gen., and Robt. F. Miller, Asst. Atty. Gen., for the State.
This appeal is from a verdict and judgment of guilty of murder in the first degree. The defendant's punishment was fixed at imprisonment for life.
The evidence shows that the elderly victim of the murder, Andrew Bell, lived alone in a rural section of Cherokee County.
This appellant and Lee Elrod and Gene Womack entered into a plan and a conspiracy to rob Bell whom Elrod had known for several years.
On 28 July 1966, after two or three days of planning, the three conspirators drove to Bell's home where they stopped on the pretext of needing some gasoline.
Bell was coming from his barn when the trio arrived, and after perfunctory introductions by Elrod, he and Bell went into the house where they remained for about thirty minutes. Elrod then called to Womack and the appellant, asking if they wanted a drink. Bell then came out, got a bucket and drew some water. Elrod and Bell then went back into the house, and after a few minutes emerged. They were talking about guns.
Bell went to his yellow and white Ford automobile which was parked in his yard, and procured a shotgun. Elrod asked to try it out. Bell produced some shells and at Elrod's request placed a can in the road. Elrod shot at the can and then asked Bell to place it on a fence post. As Bell was walking away toward a fence post, Elrod shot him as he was near a pile of lumber. His fallen body was partly concealed by the lumber.
The three then ransacked Bell's house and took therefrom various items including some groceries, blankets, old coins, a guitar, and cigarettes. Elrod then went through Bell's pockets.
The stolen articles were loaded in Bell's automobile.
It also appears that Bell had removed the back seat from his automobile and had numerous articles stored in the car, including three guns, a guitar, and four violins. The trio started the engine of Bell's automobile by 'straight wiring' it, and with the appellant driving and Elrod riding with him, they left Bell's place following Womack who drove his own automobile.
Womack, Elrod and the appellant later divided the loot thus obtained, and the appellant kept Bell's automobile. Several of the items thus obtained by the appellant were traced directly to him either through donees to whom he had given some of the items, or to purchasers or pawn brokers to whom he had sold or pawned Bell's property.
The appellant after several days obtained work at a filling station in Chattanooga, Tennessee.
At the time of the murder of Bell, the appellant was an escapee from the Cobb County, Georgia, Public Work Camp, where he was serving two sentences under a conviction for forgery.
On 22 August 1966, Paul Griffin, an agent for the Georgia Bureau of Investigation, went to Chattanooga searching for the appellant.
He found the appellant at the filling station and recognized him from a description and particularly from a tattoo of a woman and a wine glass on one of appellant's arms. He asked appellant if he was Franklin Beverly and received an affirmative answer.
Griffin then went to a nearby police headquarters and accompanied by a detective of the City of Cattanooga, returned to the filling station where the detective and Griffin purportedly arrested the appellant. At the time Griffin did not have a warrant of arrest, nor apparently did the detective.
After his 'arrest' the appellant was searched and a bill of sale to Bell's automobile was found in his wallet. Also, at this time the appellant told Griffin he had his automobile parked at the filling station and requested Griffin to see that the automobile was returned to his (appellant's) wife. This automobile turned out to be Bell's, stolen at the time of his murder.
The appellant waived extradition and consented to return to Georgia. He was then taken to the Walker County, Georgia, jail.
In the meantime, Bell's body had been found by the sheriff of Cherokee County, Alabama, and the conditions indicating a robbery of his home observed. Sheriff Garrett of Cherokee County had issued a 'pick up' request to surrounding areas for Bell's automobile. Upon examining this 'pick up' request and comparing it with the automobile parked at the filling station by the appellant, it was noted that this automobile was the wanted Bell vehicle. Griffin then notified Sheriff Garrett of these findings.
A warrant charging the appellant with the murder of Bell was duly obtained in Cherokee County, Alabama, and the appellant was notified of this charge.
Some two or three days later, Alabama law enforcement officers went to Walker County, Georgia, and the Alabama warrant charging him with the murder of Bell was read to the appellant. He was then taken before a Superior Court judge and in open court expressed his desire to waive extradition to Alabama, and signed a waiver to that effect.
The appellant was then returned to the Walker County, Georgia, jail where he was interviewed by K. W. Combs, an Alabama State Investigator, Sheriff Garrett of Cherokee County, Alabama, and Paul Griffin, and Jack Knott, agents of the Georgia Bureau reau of Investigation.
Prior to this interview, the appellant was again informed of the murder charge against him. There was then read to the appellant what is designated a 'Waiver of Counsel by Defendant in Custody' and as each paragraph was read, it was fully explained to the appellant. This waiver, signed by the appellant, reads as follows:
'I, Franklin Eugene Beverly, have been informed by the undersigned law enforcement officers, prior to being questioned by them, that I am suspected of the offense of Murder First degree in Cherokee County, Alabama, on the 28th day of Jury 1966, and have been informed by them of my rights as follows:
'1. That I may remain silent and do not have to make any statement at all.
'2. That any statement which I might make may be used against me in Court.
'3. That I have a right to consult with an Attorney before making any statement and to have such Attorney present with me while I am making a statement.
'4. That it I do not have enough money to employ an Attorney, I have the right to have one appointed by the Court to represent me, to consult with him before making any statement, and to have him present with me while I am making a statement.
'5. That if I request an Attorney, no questions will be asked me until an Attorney is present to represent me.
'After having my rights explained to me, I freely and voluntarily waive my right to an Attorney. I am willing to make a statement to the officers. I can read and write the English language and fully understand my rights to an Attorney. I have read this waiver of counsel and fully understand it. No threats or promises have been made to me to induce me to sign this Waiver of Counsel and to make a statement to the officers. This 26th day of August, 1966. Signed 'Franklin E. Beverly."
At the top of the waiver, in appellant's handwriting is the following:
In this interview the appellant made a full and detailed confession of the murder of Bell by himself and Womack and Elrod. Some of the facts as set forth above have been taken from this confession.
In the trial below this confession was offered in evidence. Upon defense objection that the same was not voluntary, the jury was excused and a voir dire examination of Combs and Sheriff Garrett was had, and the appellant also testified in this stage of the proceedings.
The testimony of the two officers was to the effect that the 'Waiver of Counsel' had been read to the appellant paragraph by paragraph, with each paragraph being explained to the appellant as it was read. Before the appellant signed the waiver, Sheriff Garrett again asked him if he understood the meaning of the waiver and he said he did. The appellant then made an oral statement to the officers. Thereafter the statement was written out by Combs and read to the appellant who signed the same.
The appellant's...
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...Smith, and inferentially the appellant, were at the Sennett residence. This was not a disputed fact at trial. In Beverly v. State, 281 Ala. 325, 330, 202 So.2d 534, 538 (1967), the Alabama Supreme Court held: "Thus appellant could not have probably been injured in any substantial right by t......
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...has already been decided adversely to the appellant in our decisions of Philpot v. State, 280 Ala. 98, 190 So.2d 291, and Beverely v. State, 281 Ala. 325, 202 So.2d 534, which hold that a in a criminal case who is not a member of the group which he contends has been illegally excluded from ......
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