Elrod v. State
| Decision Date | 14 September 1967 |
| Docket Number | 7 Div. 767 |
| Citation | 281 Ala. 331,202 So.2d 539 |
| Parties | Lee ELROD v. STATE of Alabama. |
| Court | Alabama Supreme Court |
Hugh Reed, 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 and a sentence of life imprisonment in the penitentiary. This is a companion case to that of Beverly v. State, Ala., 202 So.2d 534, this day decided.
The defendant, Elrod, and two companions, Frank Beverly and Gene Womack, planned and conspired to rob Andrew Bell and drove to his home on Lookout Mountain in Cherokee County. The three engaged Bell in conversation for a period of time. Bell, a farmer, also was a trader. According to defendant's confession, Frank Beverly showed interest in one of Bell's shotguns. Beverly purchased two shotgun shells from Bell and shot the first one at a can on the opposite side of the road from Bell's home. Beverly then asked Bell to set the can on a fence post which Bell did. Beverly shot Bell instead of the can. Bell did not die immediately and when he started to get up, Beverly either kicker Bell in the face or hit Bell in the face with the butt of the shotgun.
Elrod, Beverly and Womack then stole Bell's car and other various items, most of which Bell kept in the trunk of his car. These items included rifles, an unknown amount of money, several violins and fiddles and a pair of black shoes which defendant was wearing when he was arrested. The violins taken included a Stradivarius and a Jacobus Steiner. Bell's son had seen both of these violins in his father's possession on July 18, 1966.
On three separate occasions, after the murder, defendant, Lee Elrod, and his son-in-law, Gene Womack, bought whiskey from one Dell Berry. On each occasion, they would sell Berry a violin and then they would use the purchase price of the violin to buy whiskey. The Stradivarius and the Jacobus Steiner violins were traded for five dollars a piece. A third violin was sold to Berry for four dollars.
The decomposing body of Bell, hereafter called deceased, was found near deceased's home by one Andrew Milton James on July 31, 1966. Deceased had been dead for some 48 to 96 hours. Sheriff Mack Garrett was called and in his examination of the area found a shotgun shell about 20 yards from the body, and found a shot in the fence post and some in the slabs. Sheriff Garrett testified that the house had been ransacked. Before the body was moved, it was examined by one Van Pruitt, Jr., a State Toxicologist. Pruitt examined only the exterior of the body. He found two lacerations on the deceased's chin, and another on deceased's lower lip. He also noticed that deceased's lower denture within the mouth was fractured or broken. At this time, Pruitt suggested that deceased died by natural causes.
On August 31, 1966, Pruitt performed a post-mortem examination of the body. At this time, he found two lead shots within the heart, two shots in the left lung, one in the left chest cavity, three within the liver, one within the pancreas and three within the lining of the stomach. In Pruitt's opinion, death was caused by the injuries to these organs, principally the heart.
Appellant raised the point that the indictment should have been quashed because the Grand Jury was not legally drawn and qualified because there were no names of females in the jury box and none therefore could have served on the Grand Jury. This question was raised and decided adversely to appellant's contentions in Beverly v. State, supra, and will not be further discussed here.
The main thrust of appellant's argument is that he was too ignorant to understand the explanation of his constitutional rights before making a confession and, therefore, he did not knowingly and intelligently waive his right to counsel before making his confession.
Defendant was arrested August 24, 1966, as an escapee from Georgia. On August 25, 1966, a warrant was sworn out charging defendant with first degree murder. Defendant was interrogated for the first and only time on August 29, 1966. At this time, State Investigator Wayne Combs testified that he read to the defendant the waiver of counsel by defendant in custody; that after he had read the waiver to Elrod, he explained it to him; that he asked Elrod if he understood the waiver, and that Elrod stated that he did and then signed the waiver with his mark.
The waiver of counsel by defendant in custody signed by Lee Elrod is as follows:
'I, William Lee Elrod, have been informed by the undersigned law enforcement officers, prior to being questioned by them, that I am suspected of the offense of Murder 1st Degree in Cherokee County, Alabama, on the 28 day of July, 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.
'This 29 day of Aug., 1966.'
The interrogation of Elrod, during which time he made his confession, lasted two or three hours. Defendant makes no claim that he was threatened, promised, tricked or persuaded into waiving his right of counsel.
A defendant may waive his right to counsel and to remain silent, provided that waiver is made...
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Townes v. State
...and effect to be given the confessions by the jury. State v. Stewart, 238 La. 1036, 117 So.2d 583 [ (1960) ]." Elrod v. State, 281 Ala. 331, 334, 202 So.2d 539, 542 (1967) ; see also Jones v. State, 43 So.3d 1258, 1273 (Ala.Crim.App.2007) (same). Thus, "[w]hile an accused's intelligence and......
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...under the totality of the circumstances concerning voluntariness, are not in and of themselves determinative. "In Elrod v. State, 281 Ala. 331, 334, 202 So.2d 539, 542 (1967), this Court "`Accused's intelligence, character and situation at the time of the confession of the crime charged are......
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...bearing on the question of voluntariness." 67 Cal.2d at 383-86, 62 Cal.Rptr. at 599-601, 432 P.2d at 215-217. See also Elrod v. State, 281 Ala. 331, 202 So.2d 539 (1967) (tender age or weak intellect will not alone render confession involuntary). For more recent statements of this rule, see......
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