Coleman v. State
Decision Date | 23 April 1968 |
Docket Number | 6 Div. 316 |
Citation | 211 So.2d 917,44 Ala.App. 429 |
Parties | John Henry COLEMAN and Otis Stephens v. STATE. |
Court | Alabama Court of Appeals |
Hogan, Wilder, Tarter & Wininger, Birmingham, for appellants.
MacDonald Gallion, Atty. Gen., and Robt. F. Miller, Asst. Atty. Gen., for the State.
Appellants were indicted by the Grand Jury of Jefferson County, Alabama, for the offense of assault with intent to murder. After pleading not guilty, appellants were tried jointly by a jury, found guilty as charged, and sentenced to a term of twenty years in the State penitentiary. Following denials of their motions for a new trial, this appeal is taken.
Casey Frank Reynolds testified for the State that at about 11:30 P.M. on July 24, 1966, he and his wife were travelling south on the Green Springs Highway when he had a flat tire and pulled off onto the shoulder of the road at the top of the hill to repair it. Reynolds testified that as he was changing the tire, he noticed three people on the median of the highway running toward him; that previous to this time he had observed a car parked on the opposite side of the road headed North; that as the three people ran toward him he was shot once; that the men ran up to within three or four feet of him; and that one of the men who he identified as appellant Coleman, put his hand on his (the witness's) wife's shoulder. Reynolds stated that after a few seconds he observed lights from an approaching vehicle and that appellants turned as if to leave; that appellant Stephens turned and 'pointed his arm' at the witness and fired a shot, after which all three ran back across the road to the car which was parked there; and that they left the scene in the car. Reynolds stated on cross-examination that he later was called and asked to come to the city jail where he identified appellants as the men who assaulted him.
Robert Steele testified that he, the two appellants, and one John Hodge were together on the night of July 24, 1966; that they had been to the Sandy Ridge Club in Oxmoor; and that as the four of them were returning from the club appellant Stephens said, 'We could catch a man walking the street and rob them,' and that he (Steele) 'told him I didn't think we had to do it.'
Steele further stated that 'about middleways up the hill' on the Green Springs Highway, he began having car trouble and that he pulled the car onto the shoulder of the road where he got out, lifted the hood, and tried to get the motor running again; that while he was under the hood he heard some shots behind him; that he came from under the hood and shouted, 'I'm fixing to go;' that he saw the other three men, including the appellants, on the other side of the street; and that there was a car parked on the other side. He further stated that he saw a white man and lady; that he saw appellant Stephens make 'one shot after the man;' that the three men ran back to the car and got in; and that he (the witness) drove away from the scene.
Detective Hart testified for the defense that he was present at a line-up on October 1, 1966, at which time Casey Reynolds identified appellants; that there were six men in the line-up; and that all six men were required to say the words, 'Let's take her in the woods', or something to that effect. Hart further testified that prior to the men saying these words, Reynolds had identified both appellants as his assailants.
Appellant Otis Stephens, testifying in his own behalf, said that he, John Hodge and Robert Steele were all together on the night of July 24, 1966; that Steele had been 'drinking or taking pills;' and that as Steele was driving the car on the Green Springs Highway at about the top of the hill he ran onto the shoulder and that Hodge had to slam on the brakes to keep the car from going down the shoulder. He then testified that Steele, upon seeing a car parked on the other side of the road, said he was going to rob them. Appellant Stephens then testified in part as follows:
'
'A. Robert Steele.
'A. John Hodge.
Stephens further stated that appellant Coleman was not with him on the night in question.
Appellant contends that the preliminary hearing of an accused in the State of Alabama is a stage of the criminal proceedings within the assitance of counsel guarantee of the Sixth Amendment.
In their respective briefs appellants' counsel state in part as follows:
The Supreme Court of the United States in Pointer v. State of Texas, 380 U.S. 400. 85 S.Ct. 1065, 13 L.Ed.2d 923, held that a transcript of a witness's testimony given at the preliminary hearing was inadmissible at the trial of the petitioner where the testimony 'had not been taken at a time and under circumstances affording petitioner through counsel an adequate opportunity to cross-examine.' The Court further stated in part:
'Under this Court's prior decisions, the Sixth Amendment's guarantee of confrontation and cross-examination was unquestionably denied petitioner in this case.'
The Supreme Court declined to rule on the question as to whether or not the preliminary hearing was a critical stage of the proceedings requiring appointment of counsel. The court said in part:
We are of the opinion that the differences in the procedures of the respective States as stated in the Pointer opinion, supra, are also present in the case at bar.
The purpose of preliminary hearing in Alabama is to determine whether an offense has been committed and if so whether there is probable cause for charging the defendant therewith. If there is probable cause to believe that the defendant is guilty thereof, then it is also the duty of the magistrate to fix bail if it is a bailable offense. Code of Alabama, 1940, Tit. 15, Secs. 139--140.
Thus, the subject matter of the preliminary hearing is temporary restraint of the accused person's liberty. Its purpose is not to convict; that is the trial court's function. Nor is it to procure evidence for conviction; that is the prosecution's duty. Wood v. United States, 75 U.S.App.D.C. 274, 128 F.2d 265, 141 A.L.R. 1318.
In extending the Sixth Amendment right to counsel guarantee to arraignment proceedings, the Supreme Court of the United States in Hamilton v. State of Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114, said in part, See also White v. State of Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193.
At the preliminary hearing, however, the accused is not required to advance any defenses, and failure to do so does...
To continue reading
Request your trial-
Jackson v. State
...to believe that a crime was committed, and whether there is probable cause for believing the defendant committed it. Coleman v. State, 44 Ala.App. 429, 211 So.2d 917, cert. denied, 282 Ala. 725, 211 So.2d 927 (1968), vacated on other grounds, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387, confo......
-
Hill v. State
...1065 (1958); State v. Smith, 230 S.C. 164, 94 S.E.2d 886 (1956). We note that Judge Cates in his concurring opinion to Coleman v. State, 44 Ala.App. 429, 211 So.2d 917, Cert. denied 282 Ala. 725, 211 So.2d 927 (1968), vacated 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970), adopted the abo......
-
People v. Adams
...required to offer defenses at the hearing at the risk of being precluded from raising them at the trial itself (Coleman v. Alabama, 44 Ala.App. 429, 433, 211 So.2d 917, 921; People v. Bonner, 37 Ill.2d 553, 560, 229 N.E.2d 527). We conclude that the preliminary hearing procedures of Alabama......
-
Martinez v. State
...85 (Mo.); Burton v. State, 437 P.2d 861 (Nev.); Barker v. State, 438 P.2d 798 (Nev.); Cline v. United States, supra; Coleman v. State, 44 Ala.App. 429, 211 So.2d 917; Com. v. Bumpus, 238 N.E.2d 343 (Mass.); State v. Matlack, 49 N.J. 491, 231 A.2d 369; State v. Sinclair, 49 N.J. 525, 231 A.2......