Hodges v. State

• Decision Date: 23 May 1972
• Docket Number: 7 Div. 124
• Citation: 48 Ala.App. 217,263 So.2d 518
• Parties: Lavonnie Cadd HODGES, alias v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 518

263 So.2d 518

48 Ala.App. 217

Lavonnie Cadd HODGES, alias v. STATE.

7 Div. 124.

Court of Criminal Appeals of Alabama.

May 23, 1972.

Charles H. Wyatt, Jr., Birmingham, for appellant.

William J. Baxley, Atty. Gen., and Sarah V. Maddox, Asst. Atty. Gen., for the State.

TYSON, Judge.

The indictment charges assault with intent to murder. Appellant was convicted and sentenced to serve fifteen years in the penitentiary.

The incident in question occurred in the early morning hours of October 26, 1969, in Helena, Alabama, located in Shelby County. The victim's wife, Elizabeth Nolen, testified as witness for the State that she and her husband occupied an apartment over her husband's medical office which was across the street from Helena Drugs, a drugstore. At 3:15 a.m., she and her husband were awakened by the sound of crashing glass, and both got out of bed to investigate. She stated that she observed from her window a car backed up to the drugstore and saw two men in the area. She recalled saying, 'Oh, my, they are robbing the drugstore.' She stated that she observed the two men for about fifteen minutes in what was described as a well lighted area.

Meanwhile, her husband had secured his pistol from the chest of drawers and proceeded to the street. He fired one shot in the direction of the drugstore. Then, two shots were fired from the direction of the automobile, and Mrs. Nolen heard her husband exclaim, 'They shot me.' Three more shots came from that direction, and when the firing ceased, Dr. Nolen, who had been wounded in the face, walked back to his apartment.

Mrs. Nolen testified that it was the appellant who fired the first series of shots which came from the direction of the drugstore.

In describing the two men, she stated that 'one had light curly hair and a blue turtle neck sweater and the other had a plaid jacket or shirt and darker hair.' Both had on 'dark trousers.'

At around 4:00 a.m., Chief Deputy Joe Roden of Shelby County arrived on the scene. He testified he did not have a conversation with the victim or his wife at that time, but that he did learn that something other than a burglary had taken place. He found several shotgun shells at the scene and some spent shot were found in a nearby telephone pole. After concluding his investigation, he 'went on to the scene of the chase.'

Cooper Shaw, Chief of Police at Wilton, Alabama, at the time, stated that around 4:00 a.m., October 26, 1969, he received a telephone call from the police dispatcher in Montevallo, Alabama. The record does not disclose what that conversation was about. He testified that he then 'got in (his police car) and turned the police radio on and reported in for Shelby County and they gave me instructions where to go and what had happened.' He reported to the police at Helena and 'they assigned a man with me to go with me and showed me a road where to go.' After he turned down Highway 31 toward Alabaster, Shaw testified that the following transpired:

'A Well, I drove a pretty good piece. I couldn't say just how far. It was a log road, kind of winding road through the woods and I met a black Falcon panel truck with two men in it and we met in a place that wasn't hardly room to pass, a mudhole, there. They stopped and I stopped and I flipped on my blue light and opened the left hand door and stepped out behind the door and told them to come out with their hands up. They hesitated and looked at each other and I repeated it and I said, 'Come out with your hands up and come out now.' The doors threw open and they got out with their hands up and I said, 'Walk out here in front of the car.' I said, 'Keep your hands up, now, because I will shoot you if you try to pull anything. So, keep your hands up period.'

Regarding the suspects' descriptions, Shaw testified that one 'had on a turtle neck sweater, kind of a bluish looking turtle neck sweater, and the other one had on a brown checked sports coat.'

He further testified that he 'looked over in' the suspects' automobile and observed two shotguns therein. He then radioed Deputy Roden in Helena for assistance.

Deputy Roden testified that as soon as he arrived at the scene in Alabaster where the suspects had been apprehended, he arrested appellant and his companion. At that time he seized two twelve gauge automatic shotguns from the automobile in which they had been traveling.

I

On trial date, June 14, 1971, appellant moved to quash the indictment, his position being that the indictment on its face shows material alterations, and that it was error for the court to proceed under such indictment.

In examining the indictment, it appears that the person alleged to have been assaulted was first designated as Dr. Nolen Percy, and that the name 'Nolen Percy' was crossed out and name of 'Percy Nolen' was inserted. It further appears that the word 'pistol' and the two words preceding it were crossed out.

There was no testimony in the record as to how or when such alterations came about, nor does the appellant offer any explanation in brief. He states simply that, 'From all that appears on the face of this indictment it is not the act of the Grand Jury. . . .'

The rule governing this is found in 41 Am.Jur.2d, Indictments and Informations, Section 23, wherein it is stated:

'Where an indictment appears to have been altered, it has been held that in the absence of anything appearing on the face of the indictment or shown intrinsically tending to prove that the alteration was made subsequently to the execution of the instrument, it will be presumed that it was altered before execution and that it is the instrument returned by the grand jury.'

See also 42 C.J.S. Indictments and Informations § 95, and cases footnoted.

Finding no evidence in the record to indicate when the interlineations in the indictment were made, it will be presumed that they were made prior to its return in court by the Grand Jury. Consequently motion to quash the indictment on this ground was properly denied.

II

The record does not disclose any attempt by the appellant, prior to trial date, to bring to the court's attention his alleged denial of a speedy trial. We quote from Moulden v. State, 47 Ala.App. 573, 258 So.2d 915, which states the applicable law:

'. . . Further, the record does not reflect that any effort was made prior to trial date to have the alleged denial of a speedy trial brought to the attention of the trial court. Under Article I, Section 6, Constitution of Alabama 1901, our Supreme Court has determined that a defendant must make 'a demand for a trial or objection to the postponement of the trial, or some other effort to secure a speedy trial on the part of the accused, ordinarily must be affirmatively shown to entitle him to a discharge on the ground of delay.' Ex parte State ex rel. Attorney General, 255 Ala. 443, 52 So.2d 158; Duncan v. State, 42 Ala.App. 111, 154 So.2d 302; Autrey v. State, 44 Ala.App. 53, 202 So.2d 88. The record here reflects no such demand.'

III

Appellant's motion to quash the indictment on the ground that he was not afforded counsel at his preliminary hearing, was properly denied. His preliminary hearing was held in October, 1969, and the Supreme Court, in Adams v. Illinois, 405 U.S. 278, 92 S.Ct. 916, 31 L.Ed.2d 202, has held that its decision in Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387, does not apply retroactively to preliminary hearings conducted before June 22, 1970, the date of the Coleman opinion.

IV

Appellant insists that he was arrested without probable cause, and that the seized shotguns, introduced in evidence over objection, were the fruits of an illegal search. We find a discussion of these contentions unwarranted, as we are convinced that appellant is without standing to challenge the seizure.

From Meade v. Cox, 310 F.Supp. 233 (W.D.Va.1970), we quote:

'The leading case on standing is Jones v. United States (362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697), supra. Jones held the defendant in that case had standing in one of two ways. First, if possession both convicts and confers standing, standing is automatically conferred. . . . Secondly, anyone legitimately on the premises where a search occurs may challenge the legality of the search and seizure. Jones further held that 'this would of course not avail those who by virtue of their wrongful presence, cannot invoke the privacy of the premises searched.' 362 U.S. at 267, 80 S.Ct. at 734, 4 L.Ed.2d at 706.'

In Cassady v. United States, 410 F.2d 379 (5th Cir. 1969), the court spoke to this point:

'The record is devoid of evidence indicating any interest, ownership or otherwise, of Cassady in the Falcon such as to afford him standing to complain of its search. Only one whose Fourth Amendment right of privacy has been violated may object to the introduction of the fruits of an illegal search. (Citing Jones.)

And our own court, per Cates, Judge, has spoken to this matter in Simmons v. State, 44 Ala.App. 212, 205 So.2d 576, wherein it was stated:

'The Constitution protects 'persons, house, papers, and effects' to be secure against unreasonable searches and seizure. Simmons in no wise claimed either the claimed stray safe nor the supposedly abandoned truck.

'Applied here, we consider Simmons had no standing to complain of the seizure of the stolen safe without a warrant '. . . In no wise do we consider the seizure as being from the person or property of the defendant. His interest in the safe was either innocently inquisitive or feloniously acquisitive. This choice was for the jury.'

In point with the case at bar is Moore v. State, 44 Ala.App. 113, 203 So.2d 460, where it was held the defendant could not object to the search of the automobile in which he was a passenger, where he had no possessory or proprietary interest in the vehicle.

The record here does not reflect that appellant had any legitimate interest, proprietary, or otherwise, in the searched automobile. Rather,...