Hunter v. State, 6 Div. 914

CourtAlabama Court of Appeals
Citation83 So.2d 737,38 Ala.App. 351
Docket Number6 Div. 914
PartiesSteve HUNTER v. STATE.
Decision Date22 November 1955

Rogers, Howard & Redden and J. Edmund Odum, Birmingham, for appellant.

John Patterson, Atty. Gen., and Owen Bridges, Asst. Atty. Gen., for the State.

These charges were refused to defendant:

'8. The court charges the jury, that if they believe from the evidence that Steve Hunter was merely riding around in the car with Paul Beddow on the night the alleged crime is said to have been committed, and an offense was committed by one of them, from causes having no connection with the common object for which they were riding, the responsibility for such offense rests solely on the actual perpetrator of the crime, and the jury cannot find the defendant guilty, simply because he happened to be present at the time the offense was committed.'

'19. I charge you, gentlemen of the jury, that if you believe from the evidence in this case, beyond a reasonable doubt, that the defendant was told he would be allowed a reasonable bond if he confessed then it would be your duty not to consider the confession.'

PRICE, Judge.

Appellant was convicted of the offense of an assault with intent to rob, and was sentenced to fifteen years imprisonment in the penitentiary.

Before arraignment the defendant moved for a change of venue, resting his right in the application upon the newspaper publicity given his alleged offense; asserting in such newspaper articles it was wildly proclaimed that the defendant had admitted the crime; that defendant was indicted two days after he was placed in jail and his case was first set for trial only seven days after the indictment; that for the reasons stated in the application the minds of the citizens and prospective jurors of Jefferson County were so inflamed against him that it would be impossible for him to secure a fair and impartial trial within the county.

Defendant introduced no affidavit or other evidence in support of his application, nor did he introduce the newspaper articles referred to therein.

'The burden is upon the defendant to show to the reasonable satisfaction of the court that an impartial trial and an unbiased verdict cannot reasonably be expected, in order to achieve the right to a change of venue.' Patton v. State, 246 Ala. 639, 21 So.2d 844, 845; Maund v. State, 254 Ala. 452, 48 So.2d 553; Godau v. State, 179 Ala. 27, 60 So. 908.

In the absence of proof to sustain the motion, the court will not be put in error for having denied it, though no contrary affidavits were filed by the State. Underwood v. State, 248 Ala. 308, 27 So.2d 492.

The evidence for the State tends to show that Mr. Pierce, the operator of a filling station at the intersection of 14th Street and Avenue F, Birmingham, observed a man alighting from a black convertible automobile around eleven-thirty on the night of October 23, 1953. This man, masked and armed with a pistol, entered the station and announced 'this is a stick-up,' or 'this is a hold-up.' During the struggle which followed between the man and Mr. Pierce, the station was considerably disarranged; a large plate glass window was broken and one or more shots were fired from the pistol, which Mr. Pierce succeeded in wresting from his assailant. The man ran to the waiting automobile and escaped. Mr. Pierce did not see the driver of the car.

Hobart Wear testified he saw the automobile stop at the intersection of Fourteenth Street and saw the masked man get out of it and run into the filling station. He saw the altercation between this man and Mr. Pierce, and he wrote down the license number of the automobile in which the masked individual left the scene.

Police Officer Lakey testified he broadcast to Police Headquarters an automobile license number given to him by some person in the course of his investigation at the filling station.

Police Officer Parker identified the pistol introduced in evidence as one he had loaned to Paul Beddow on October 12th.

Acting Police Captain Lance testified he heard a radio report that appellant's car had been reported as stolen and that one Gus Vlahos was found driving the automobile.

John J. Patino, a City Detective of San Antonio, Texas, identified a written confession, signed by defendant and concurred in by Beddow, as having been made at his office in San Antonio on October 27, 1953.

In the confession, which is in evidence, defendant admitted that he and Paul Beddow, after drinking beer together for several hours, decided to rob the filling station to get money to finance a proposed western trip. He also stated that Beddow was the masked individual who entered the station and that defendant was the driver of the automobile, which belonged to Beddow. After the flight from the station defendant reported his automobile, as well as the pistol used in the attempted robbery, as having been stolen. Beddow and defendant left Birmingham immediately and were apprehended by the San Antonio police the following Sunday afternoon.

Testifying in his own behalf, defendant denied any knowledge of or any part in any plot or scheme to rob Mr. Pierce or anyone else. He stated that he and Beddow had been drinking continuously and riding around for several hours, and Beddow said, 'Stop here and let me out and drive around the corner.' The next thing defendant remembered was hearing a shot and breaking glass and seeing Beddow running to the car. He testified he was placed in the drunk cell of the San Antonio jail on Sunday. The following Tuesday morning he was questioned for an hour, then he was placed in a small cell for about six hours after which he was taken back upstairs and was told that Beddow had made a statement. Beddow, sent in to talk to defendant alone, stated to him that the officers had said if they didn't confess a charge of assault with intent to murder would be placed against them. He stated Lieutenant Evans, of the Birmingham police department, confirmed Beddow's statement that if they would confess no additional charges would be placed against them, that they would be allowed reasonable bond and the police department would not oppose probation, and that Captain Walker when informed of the statement by Lieutenant Evans, said 'Yes, I will agree to that. I will go along with whatever you say, Lieutenant.'

It is complained that the trial court erred in admitting into evidence the confession of defendant, over objection and exception, and in overruling appellant's motion to exclude the State's evidence 'on the ground that there wasn't a voluntary statement.'

As a condition precedent to the admission of the confession, its voluntary character was shown by the testimony of officer Patino, to the effect that before the statement was made, neither the witness, nor anyone in his presence or hearing, abused the defendant in any manner, or offered him any inducement or hope of reward to get him to make the statement, or tell him it would be better for him to make a statement or worse for him if he did not make it. This was sufficient predicate for its admission, Ray v. State, 29 Ala.App. 382, 197 So. 70, certiorari denied 240 Ala. 73, 197 So. 73; Rutland v. State, 31 Ala.App. 43, 11 So.2d 768; Arrington v. State, 253 Ala. 178, 43 So.2d 644, and Patino's statement on cross-examination that he didn't know whether or not any inducements were made to defendant before the witness arrived does not tend to controvert his testimony on direct examination as to the absence of circumstances which would render the statement involuntary. Bettis v. State, 160 Ala. 3, 49 So. 781.

It is argued in brief that the court should have excluded the confession from the jury's consideration because subsequent to its admission it was shown by the testimony of State's witness Police Captain Walker, the defendant and that of his witness, Lieutenant Evans, that the confession was obtained by threats or promises.

Captain Walker testified no inducements or hope of reward was offered defendant and that he was not threatened, abused or mistreated in any manner by the witness nor by anyone in his presence or hearing. On cross-examination Captain Walker stated he did not tell Lieutenant Evans in the presence of defendant that there was pending against defendant a charge of assault with intent to murder or that such a charge could be added, but that if defendant would sign the confession witness would see that no other charges were added, and Lieutenant Evans did not make any such statement to defendant in witness' presence. He stated that he did tell defendant some women were missing and if they were found harmed defendant would face additional charges. He also testified he did not say that he would not oppose probation or would see that defendant was allowed reasonable bond if he signed the confession.

We do not agree with appellant's contention that the following questions and answers on cross-examination of this witness show that his testimony as to inducements held out to defendant was hazy and equivocal to such an extent as to cause the court to harbor doubt concerning the voluntary nature of the confession:

'Q. Did you have any discussion at all about some additional charges? A. There was something stated about some charges, but we didn't have any other charge.

'Q. Who stated about these other charges? A. I don't recall what was stated about them at that time.

'Q. Well, do you know who stated it? A. Well, no, sir, I wouldn't say.

* * *

* * *

'Q. Did you have any conversation with him about any additional charges being placed against this man or the other man? A. The only charges that we had was attempted robbery.

'Q. I see. I understand that, but there was some mention about assault with intent to murder, was there not? A. I don't recall it, no. What time?

'Q. Can you say, Captain Walker, that you made no mention of assault with intent to murder being added against this man or the other man? A. I don't recall...

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