Hill v. State
| Decision Date | 24 August 1976 |
| Docket Number | 7 Div. 392 |
| Citation | 339 So.2d 601 |
| Parties | Joe Ed HILL and William Pitchford, alias v. STATE. |
| Court | Alabama Court of Criminal Appeals |
J. Wilson Dinsmore, Birmingham, for appellant.
William J. Baxley, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State, appellee.
Assaulting a peace officer with a deadly instrument; ten years.
During the spring term of its 1975 session, the Shelby County grand jury returned separate indictments against the appellants, charging that each '. . . did unlawfully assault a peace officer, or a law enforcement officer of this state or political subdivision thereof while in the active discharge of his lawful duty or duties with a deadly instrument to-wit: a shotgun . . .'
To these indictments, each pled not guilty at arraignment with their counsel present. Prior to trial, a stipulation was made that the defendants would be tried jointly. A trial was had and each was convicted as charged. After being adjudged guilty separately, each was sentenced to ten years and notice of appeal was given.
In support of these charges against the appellants, the State presented the following evidence:
It appears that the alleged offense occurred on a stretch of track held by the Louisville and Nashville Railroad, under an easement. The site was about one and one-half miles from Highway 52, on what is called the Helena and Blockton Branch Line in Shelby County.
On December 13, 1974, at 1:30 P.M., G. T. Hollis, an L & N Railroad policeman, drove to Shelby County. Hollis was alone at the time and he parked his car on a road about one mile south of Highway 52. Dressed in green coveralls and carrying a loaded 12 gauge pump shotgun, Hollis walked down the old railway roadbed to an area where some rails had been cut and removed. He stated that about two weeks before the incident he had gone to the same area and discovered missing rails. As he approached the area he saw a yellow pick-up truck parked on the railroad roadbed.
Standing about one hundred feet behind the truck were three men. The first was the appellant, Hill, who was walking toward the truck, carrying what appeared to be a piece of rail. The second man was standing near the truck and was the man Hollis later learned to be Key. The third man was the appellant, Pitchford, who was standing over a rail, cutting it with an acetylene torch.
As Hollis walked to within thirty feet of the trio, he called out that they were under arrest and identified himself as a railroad policeman. He shouted for them to stand and place their hands on their heads. The command was repeated several times and Hill and Key responded. Pitchford continued to cut the rails. At that point, Key went over to Pitchford, touched him on the shoulder and said: "Bill, the man said, stop." Pitchford then got up and turned to Hollis and asked if he could 'cut the tanks off.' When the torch was extinguished, Pitchford asked Hollis what department 'he was with.' Again Hollis repeated his name and that he worked for L & N as a railway policeman. The trio then placed their hands over their heads. They were told to lie down and Hollis walked over to where Hill was lying. As Hollis tried to handcuff him with a plastic tape, Hill lurched and grabbed the barrel of the shotgun. They struggled and Hill called to Pitchford: 'Hey, Bill, come help me, I got him.' Pitchford came around behind Hollis and grabbed the gun. At that time both of the men were standing over Hollis when the gun discharged, hitting Key in the leg. Hollis was momentarily knocked out and when he revived, Pitchford was standing on the other side of the tracks, pointing the gun at him. Appellant pulled the trigger four or five times, but the gun would not fire. Pitchford called to the others: "Do you all dare me to shoot him?", and Hill, who was assisting Key, replied "Bill, I dare you to shoot . . . shoot the son-of-a-bitch."
Pitchford turned to Hollis and said, "Don't move your hands from where they are and roll down (the) bank." As Hollis rolled down the bank he did not see Pitchford eject a shell but heard him pump the shotgun. Almost immediately, the gun fired and three pellets struck Hollis in the rear portion of his left arm. Hollis was stunned and subsequently, staggered to the edge of Helena dump road, where he was discovered. He was carried to Shelby County Hospital and later to St. Vincent's in Birmingham.
During cross-examination, Hollis denied hitting Hill with the shotgun or using profanity at any time during the incident. He admitted that he did not have a badge exhibited but countered he was working as a detective. Further, Hollis maintained his shout had been heard because the trio responded.
Hollis stated the track had not been used by the L & N for eight years other than for maintaining a right-of-way. He said the line was useable, but this was not possible now because rails had been stolen.
Hollis also testified that trees six to eight inches around were growing between the tracks, and debris covered the bed area. He stated that ninety percent of the ties needed to be replaced. According to Hollis, on the north end of the line, the railroad had given the State permission to pave over the rails crossing Highway 52. Further, he explained, a bridge had been destroyed by fire, and the south end of the line ran to a dead end.
Hollis identified the indenture passing Birmingham Mineral Railroad Company's interest in this section of track to the L & N Railroad Company. The Eureka Company originally passed title to the Birmingham Mineral Railroad Company with the following condition 'To have and to hold the above conveyed easement unto the said party of the second part its successor and assigns, so long as the same is used for its railroad and no longer.'
He explained he was not aware that his railroad policeman's commission was required by law to be filed with Shelby County, but said he carried the commission card in his pocket. Although he was not a member of a police department, Hollis said he considered himself a detective, salaried by the L & N.
Larry Edmunson, a former deputy sheriff for Shelby County, was operating a construction and excavating company on December 13, 1974. That afternoon while on his way to the Helena dump in Shelby County, he saw Hollis staggering in the woods just off the road. Hollis said 'he was hurt' and Edmunson observed blood on his arm. He laid Hollis down and later carried him to the Shelby County Hospital.
Dr. Thomas McGruder, a licensed physician, specializing in general surgery, testified that on December 13, 1974, he saw Hollis in the emergency room of St. Vincent's Hospital. He stated the upper portion of Hollis' left arm had two wounds in the rear with a larger wound in the front. Some nerves to Hollis' hand were damaged and according to Dr. McGruder, they were surgically repaired by Dr. Sweeney.
J. P. Vaughan, the division engineer for the L & N, was in charge of maintenance of tracks, buildings, bridges, signals and communications. He testified that the Wednesday before Thanksgiving of 1974, he walked from Gurney Junction to the vicinity of Milepost 411, on the line in question. A quarter of a mile beyond the mile post, he found the rail missing for one or one and one-half miles.
Vaughan, on cross-examination, admitted that the crossing on Highway 52 had been paved over for five or six years, but explained estimates had been made on the cost for placing the line in operation. Vaughan went on to say that the company was using the line for a railroad and was maintaining a right-of-way for future use.
James Howell, an evidence technician with the Jefferson County Sheriff's Department, met a representative of the L & N Railroad on December 13, 1974, at the Alabaster Police Department. From there they drove to very near an area where he saw 'layers' of rails had been cut. He made photographs of the area and retrieved acetylene torches, cigarette packs, coveralls, goggles and a pair of eye glasses. These items were dusted for prints but the comparisons were negative.
Bill Davenport, a Shelby County Deputy Sheriff, was called to the Shelby County Memorial Hospital on December 13, 1974, where he saw Hollis in the emergency room.
Later he was directed by the attorneys for the defendants to the area where the shotgun belonging to Hollis was located. There were three unfired shells and one fired hull in the gun. The shells were removed and the gun was subsequently returned to Hollis.
Davenport stated that several days after the incident, the two defendants were surrendered to the authorities by their attorney, J. Wilson Dinsmore.
Wallace Tidmore, the Secretary of the Public Service Commission, since March 1, 1968, testified that as secretary, he was also custodian of records kept in the course of the commission's business. Tidmore produced a copy of a certificate dated October 2, 1967, commissioning G. T. Hollis as a railroad policeman. He also showed a copy of an oath of office and bond executed by Hollis.
Appearing on the certificate of commission was a statement signed by the Secretary of the Commission, Orvill P. Large, stating a copy of the certificate had been sent to the counties where the railroad operated.
Thomas Snowden, Tax Assessor of Shelby County, testified that the public utility assessment records for 1974--75, indicated 9.96 miles of L & N's track designated the Helena and Blockton Roads were assessed at $29,900. He stated the taxes would be about $900. and that L & N had paid the taxes on the track.
At the end of Snowden's testimony, the State's case was completed. After a motion to exclude was overruled, the defendants called Louis J. Harris. He had lived in Siluria, Alabama, for forty years and was familiar with the railroad running from Gurney Junction to Highway 52.
Harris testified that 'Boothtern mine' was located at the Gurney Junction end of the line and the...
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