Boulden v. State

• Decision Date: 30 September 1965
• Docket Number: 8 Div. 175
• Parties: Billy Don Franklin BOULDEN v. STATE of Alabama.
• Court: Alabama Supreme Court

Page 20

179 So.2d 20

278 Ala. 437

Billy Don Franklin BOULDEN v. STATE of Alabama.

8 Div. 175.

Supreme Court of Alabama.

Sept. 30, 1965.

W. L. Chenault, Decatur, for appellant.

Richmond M. Flowers, Atty. Gen., and W. Mark Anderson, III, Asst. Atty. Gen., for the State.

LAWSON, Justice.

Billy Don Franklin Boulden was convicted in the Circuit Court of Morgan County of the first degree murder of Loyd C. Hays. He was sentenced to death in accordance with the verdict of the jury. He has appealed to this court under the automatic appeal law applicable to cases where the death sentence is imposed. Act 249, approved June 24, 1943, General Acts 1943, p. 217, carried in the 1955 Cumulative Pocket Part to Vol. Four, 1940 Official Code, and in the 1958 Recompiled Code as Title 15, §§ 382(1) et seq.

Hays, a conservation officer of the State of Alabama, was killed on the afternoon of May 1, 1964. Boulden, a Negro, eighteen years of age, was taken into custody by law enforcement officers at the scene of the crime. The Honorable James N. Bloodworth, one of the Judges of the Circuit Court of Morgan County, was immediately notified of the crime and that Boulden was being held. Judge Bloodworth directed that Boulden be carried to the Limestone County Jail, in Athens, for safekeeping. He was kept there for several hours.

On the following morning, May 2, 1964, Boulden was brought to the Morgan County Court House before Judge Bloodworth, sitting as a magistrate. Boulden's father had been notified of the hearing to be held before Judge Bloodworth and was told that he could have a lawyer present if he so desired. The Sheriff of Morgan County had sworn to affidavits before Judge Bloodworth charging Boulden with the first degree murder and robbery of Hays and with the rape of Ann Burnett, a fifteen-year-old married white girl. Warrants of arrest signed by Judge Bloodworth were served upon Boulden and returned to Judge Bloodworth at the hearing.

Boulden's father, mother, two brothers and three sisters were present at the hearing. Those present were told by the Judge that the purpose of the hearing was to explain to Boulden and his family the nature of the charges against him and to inform him of his constitutional rights.

Boulden was told the punishment which could be imposed upon him by a jury if he was convicted of any one of the three offenses with which he was charged. He was told that he had a right to a preliminary hearing and the nature of such a hearing was explained to him. He was told that he had the right to apply for a writ of habeas corpus and the right to petition for bail. The nature of these proceedings was explained to him. He was told that he had the right to employ counsel but that if he was financially unable to do so the court would appoint a lawyer to represent him, but that a court-appointed lawyer would not necessarily be the lawyer of his choice.

Boulden was advised that he did not have to say anything at the hearing or at any other time that would incriminate him. He was told that he did not have to submit to an unreasonable search and seizure and was advised that any evidence which may have been obtained by an unreasonable search and seizure could not be used against him in a court of law.

The manner in which an indictment is obtained was explained and he was told that if indicted the law would still presume him to be innocent until the State met the burden upon it to prove his guilt beyond a reasonable doubt.

Boulden was then asked whether the law enforcement officers had mistreated him in any way or threatened to do so. He replied in the negative. Boulden stated that food and water had been furnished him and that he had not been denied bathroom privileges.

He was advised by Judge Bloodworth that it would be wise for him not to make any decision about his future course in court until he had talked to his lawyer.

Judge Bloodworth informed Boulden that he would be taken to Kilby Prison for safekeeping but that his lawyer, whether employed or appointed, would be able to see him there. At the conclusion of the hearing Boulden consulted with his family and was then taken to Kilby Prison near Montgomery.

Boulden was indicted for the murder of Hays by a grand jury of Morgan County on May 7, 1964. He was unable to employ counsel so prior to arraignment the trial court, under the provisions of § 318, Title 15, Code 1940, appointed an experienced member of the Morgan County Bar to represent him.

Before, arraignment Boulden, by demurrer, challenged the indictment and each count thereof on several grounds. The demurrer was overruled.

Upon arraignment, Boulden pleaded not guilty and not guilty by reason of insanity. The court-appointed attorney was present at arraignment. Hamilton v. State of Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114.

After pleading to the indictment, Boulden moved the court 'to commit him to an insane hospital for evaluation.' The motion was overruled following a hearing.

The case came on for trial on May 27, 1964, and was concluded on May 29, 1964. As heretofore indicated, the jury found Boulden guilty of murder in the first degree and imposed the death penalty. He was duly sentenced on May 29, 1964. Court-appointed counsel was present throughout the proceedings, from arraignment through sentence.

The attorney who represented Boulden in the court below was appointed to represent him on this appeal. He has filed a brief on Boulden's behalf.

Indictment

The indictment contains four counts, each charging murder in the first degree. The counts are identical except as to the means by which the offense is alleged to have been committed. In the first count, it is alleged that Boulden killed Hays 'by shooting him with a gun or pistol'; in the second count, 'by cutting him with a knife'; in the third count, 'by shooting him with a gun or guns, or by shooting him with a pistol or pistols, or by cutting him with a knife or other sharp instrument'; and in the fourth count, 'by cutting his throat with a 'Tree Brand' pocket knife.'

The second and fourth counts are substantially in compliance with Form 79, § 259, Title 15, Code 1940, and therefore are sufficient as against the demurrer. Aikin v. State, 35 Ala. 399; Noles v. State, 24 Ala. 672; Franklin v. State, 233 Ala. 203, 171 So. 245; Rice v. State, 250 Ala. 638, 35 So.2d 617.

The first and third counts are also in substantial compliance with Form 79, supra, except that they charge in the alternative the means by which the offense was committed. This is permissible under the provisions of § 247, Title 15, Code 1940. But when the means by which an offense was committed are charged in the alternative, each alternative charge must describe the means with the same definiteness or particularity as would have been required had the charge been made separately in a separate count. Rogers v. State, 117 Ala. 192, 23 So. 82; State v. Nix, 165 Ala. 126, 51 So. 754, and cases cited; Duncan v. State, 278 Ala. 145, 176 So.2d 840. An indictment in the language of the first count was held good by our Court of Appeals in Bufford v. State, 23 Ala.App. 521, 128 So. 126. The third count is more involved. It alleges in effect, that Hays died as a result of bullet wounds inflicted by a pistol or pistols or by a gun or guns, or as a result of cuts inflicted by use of a knife or other sharp instrument. While the third count may have been unnecessary in view of other counts in the indictment, we can understand why it was drawn and included, in view of the multiple wounds on the body of Hays, some caused by bullets, others by some kind of sharp instrument. It was drawn to meet the proof which would be adduced as to the exact cause of death. We are of the opinion that the third count sufficiently advises the accused of the means by which the State claimed he killed the deceased. Each alternative was sufficient under our holdings in Rogers v. State, supra; State v. Nix, supra; and Duncan v. State, supra. In regard to the last alternative in the third count, that is, that Boulden killed Hays by cutting him 'with a knife or other sharp instrument,' see Rowe v. State 243 Ala. 618, 11 So.2d 749.

The demurrer to the indictment was properly overruled.

Motion for Commitment for Sanity Evaluation

By this motion counsel for Boulden apparently sought to invoke the authority granted the trial court by the provisions of § 425, Title 15, Code 1940, which reads:

'Whenever it shall be made known to the presiding judge of a court by which an indictment has been returned against a defendant for a capital offense, by the written report of not less than three reputable specialist practitioners in mental and nervous diseases, appointed by the judge, or by the written report of the superintendent of the Alabama state hospitals, that there is reasonable ground to believe that such defendant was insane either, at the time of the commission of such offense, or presently, it shall be the duty of the presiding judge to forthwith order that such defendant be delivered by the sheriff of the county to the superintendent of the Alabama state hospitals, who is charged with the duty of placing such defendant under the observation and examination of himself and two members of his medical staff to be named by him, constituting a commission on lunacy, with the view of determining the mental condition of such defendant and the existence of any mental disease or defect which would affect his present criminal responsibility, or his criminal responsibility at the time of the commission of the crime.

* * *'

In Howard v. State, 278 Ala. 361, 178 So.2d 520, decided on June 30, 1965, in upholding the action of the trial court in overruling a similar motion, we said:

'* * * the court is under no duty to appoint a lunacy commission or to procure a report of the Superintendent of the Alabama State Hospitals under Tit. 15, § 425, Code 1940. The court has simply the right to seek these aids for...