Loyd v. State

Citation186 So.2d 731,279 Ala. 447
Decision Date05 May 1966
Docket Number2 Div. 452
PartiesOlen Ray LOYD v. STATE of Alabama.
CourtSupreme Court of Alabama

Bryan Chancey and Gordon, Miglionico & Cleveland, Birmingham, for petitioner.

Richmond M. Flowers, Atty. Gen., opposed.

COLEMAN, Justice.

Defendant was convicted for assault with intent to murder. The Court of Appeals affirmed. Defendant has applied for certiorari to review the judgment of the Court of Appeals.

In outline, the state contends that defendant and a companion were riding in an automobile on a highway in Dallas County; that they met a truck; and that defendant's companion shot the truck driver with a load of buckshot from a shotgun. The shooting occurred in the early morning hours of Thursday, January 18, 1962.

About 5:00 a.m., Thursday, a patrolman stopped defendant's automobile at a road block in Bibb County. The patrolman searched defendant's car and found a shotgun and a box of shells. The patrolman allowed defendant to proceed on his way.

About 8:00 a.m., Thursday, an officer stopped defendant's automobile at Ohatchee, about eighteen miles from Anniston. The officer took defendant and companion to Anniston and turned them over to 'the Highway Patrol.' The officer had no warrant. He insists that he did not arrest defendant. Defendant insists that the arrest was illegal. Defendant and companion were taken to Birmingham and there delivered to the Sheriff of Dallas County who took them to the jail in Selma. They were not released until about ten days later when bail was allowed.

Defendant's automobile was taken to Montgomery and there examined by a 'criminalist' who testified as to results of his examination and identified articles which he found in defendant's automobile. The articles were admitted into evidence, some without defendant's objection, others over defendant's objection.

Defendant was questioned and gave a confession which he signed on Saturday night about 10:00 p.m. Defendant insists that the confession was not admissible in evidence.

Defendant asserts that the Court of Appeals erred in holding that the evidence submitted to the grand jury constituted legal evidence so as to justify an indictment.

When it appears that witnesses were examined by the grand jury, or that the grand jury had before them legal documentary evidence, no inquiry into the sufficiency of the evidence is indulged. Washington v. State, 63 Ala. 189; Agee v. State, 117 Ala. 169, 23 So. 486; Fikes v. State, 263 Ala. 89, 81 So.2d 303; Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397.

It appears that one witness was examined by the grand jury in the instant case, and, therefore, we will not indulge inquiry into the sufficiency of the evidence before the grand jury. We are of opinion that the Court of Appeals was correct in holding that the trial court did not err in overruling the motion to quash the indictment.

The Court of Appeals correctly affirmed the action of the trial court in sustaining objections to questions asking grand jurors what testimony concerning details of the crime the sheriff gave to the grand jury. Gaines v. State, 146 Ala. 16, 41 So. 865; Reeves v. State, 264 Ala. 476, 88 So.2d 561; and authorities supra.

In his application for certiorari, defendant assigns, as grounds to reverse, that the Court of Appeals erred in holding the confession admissible in evidence. Defendant says that the confession was inadmissible because, (1) it was the fruit of an unlawful arrest of defendant, and, (2), because the confession was obtained while defendant was illegally detained and deprived of counsel.

We are not advised of any case holding that a confession is inadmissible for the reason that it was made while a defendant was being held after being unlawfully arrested. As we note hereafter, the Supreme Court of the United States has held that evidence obtained as the result of an illegal search is not admissible, but we are not advised that the rule of exclusion has been applied to a confession, which is shown to have been voluntarily made, although the confessing person may have been illegally arrested. We are of opinion that the confession was not inadmissible on the ground that it was made after defendant had been taken into custody by an unlawful arrest.

We do not decide whether the arrest of defendant was lawful or unlawful because we do not think such decision necessary in this case.

Defendant's second reason, to wit, that his confession is inadmissible because it was made while he was unlawfully deprived of counsel, requires that we decide whether he has been denied a right guaranteed to him by the Constitution of the United States. Ordinarily, on certiorari, this court will not review findings of fact by the Court of Appeals in the absence of full statement of the evidence by the Court of Appeals. Even where the Court of Appeals has not written an opinion, however, in 'extreme instances,' this court has looked to the record to ascertain the facts. In such a case this court said:

'In the first case decided by this Court, holding that it would not review the findings of fact by the Court of Appeals (Ex parte Louisville & Nashville R. Co., 176 Ala. 631, 58 So. 315, 317), it was recognized that the decisions of the Court of Appeals should be final 'except perhaps in * * * extreme instances not necessary to now mention.'

'After all that may be said on this phase of the case, it was never contemplated by the Legislature of this State which created the Court of Appeals, that such court should have the power or authority to finally determine constitutional questions and conclude a review of such determination by the form of its judgment without an opinion. Specific prohibitions are found in the statutes dealing with that court against the nullifying of a statute for constitutional reasons. The rule to which we have adverted regarding the right of review of decisions of our Court of Appeals where no opinion was rendered by that court, should not be so extended as to permit the Court of Appeals to preclude a decision by this Court upon federal questions.' State v. Parrish, 242 Ala. 7, 12, 13, 5 So.2d 828, 833.

In the instant case, we must decide on federal questions and will look to the record.

With respect to denial of counsel as affecting admissibility of a confession, the Supreme Court of the United States has said:

'We hold, therefore, that where, as here, the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into police custody, the police carry out a process of interrogations that lends itself to eliciting incriminating statements, the suspect has requested and been denied an oppportunity to consult with his lawyer, and the police have not effectively warned him of his absolute constitutional right to remain silent, the accused has been denied 'the Assistance of Counsel' in violation of the Sixth Amendment to the Constitution as 'made obligatory upon the States by the Fourteenth Amendment,' Gideon v. Wainwright, 372 U.S. (335), at 342, 83 S.Ct. (792), at 795 (9 L.Ed.2d 799) and that no statement elicited by the police during the interrogation may be used against him at a criminal trial.' Escobedo v. State of Illinois, 378 U.S. 478, 490, 491, 84 S.Ct. 1758, 1765, 12 L.Ed.2d 977.

The evidence relating to the confession has been carefully examined. The evidence favorable to admissibility of the confession tends to justify a finding that defendant was questioned from 5:00 p.m. until 11:00 p.m. Friday; that defendant was permitted to eat and take several breaks; that defendant called the residence of Mr. Esco, an attorney, on the telephone and was told that Mr. Esco would not see defendant Friday night but would see him the next day; that defendant told his questioners that he wanted to talk to his wife and talk to her in person the next day and then he would give a definite answer as to whether he would give a statement; that defendant talked to his wife on the telephone on Saturday between twelve and two, whether a.m. or p.m. is not clear; that defendant's wife came to the jail about 7:00 p.m. Saturday but was not permitted to see defendant until after he had made the confession; that Mr. Esco came to the jail Saturday, shortly before or about the time the wife came, but was not permitted to see defendant; that about two or three o'clock Saturday afternoon, defendant indicated he was ready to make a statement and commenced to do so; that the statement was written down by one of the officers and signed by defendant about 10:00 p.m. Saturday; that when Mr. Esco came to the jail Saturday, defendant was informed of Mr. Esco's presence, but defendant said he had no desire to see Mr. Esco and had not retained him, and defendant wrote the note to Mr. Esco which is set out in opinion of Court of Appeals. We are of opinion, that if the trial judge found the facts to be true as we have summarized them, then the confession was not inadmissible on the ground that defendant was denied counsel. Accordingly, we hold that the Court of Appeals did not err in finding the confession admissible.

As grounds for reversal of the Court of Appeals, defendant alleges:

'10. The court erred in failing to hold that the exhibits taken from defendant's automobile by an illegal search and seizure were inadmissible in evidence.'

We do not find that the Court of Appeals expressly ruled on admissibility of the articles taken from defendant's automobile. It is as if no opinion had been written on this question, which is also a federal question.

The argument, against admissibility of articles taken from defendant's automobile, is that the articles were obtained by an illegal search and are, for that reason, not admissible against defendant.

The articles were admitted into evidence on the testimony of a 'criminalist' employed by the state. He testified that the automobile was...

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