Murry v. State, 2 Div. 222

• Decision Date: 19 December 1978
• Docket Number: 2 Div. 222
• Citation: 367 So.2d 985
• Parties: Eddie MURRY v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 985

367 So.2d 985

Eddie MURRY v. STATE.

2 Div. 222.

Court of Criminal Appeals of Alabama.

Dec. 19, 1978.

Rehearing Denied Jan. 16, 1979.

Frank L. Thiemonge, III, Montgomery, for appellant.

William J. Baxley, Atty. Gen. and Eugenia D. B. Hofammann, Asst. Atty. Gen. for the State, appellee.

HARRIS, Presiding Judge.

Appellant was indicted by the grand jury of Dallas County, Alabama, for perjury. The indictment, omitting the formal parts, states that:

"COUNT I

"The Grand Jury of said County charge that before the finding of this indictment Eddie Murry, whose name is unknown to the Grand Jury other than as stated, did on his examination as a witness, duly sworn to testify on the trial of Will Travis, Jr., in the criminal court of Dallas County, Alabama, under a prosecution upon a charge of Forgery, which said Court had authority to administer said oath, falsely swore that the statement hereto attached is not true and correct. The said Eddie Murry further swore that the hereto attached statement is not true and correct, the matter so sworn to being material, and the testimony of the said Eddie Murry being willfully and corruptly false, against the peace and dignity of the State of Alabama.

"COUNT II

"The Grand Jury of said County charge that before the finding of this indictment, Eddie Murry, whose name is unknown to the Grand Jury other than as stated, on his examination as a witness, duly sworn to testify, on the trial of One, Will Travis, Junior, in the Circuit Court of Dallas County, under an indictment for Forgery of a check, which said court had authority to administer such oath, falsely swore that he and the said Will Travis did not discuss checks stolen from the City Produce Company of Selma, nor the availability of said checks 'to be passed', nor did Will Travis deliver him a check for the purpose of being passed, nor did Will Travis, in any manner, encourage him to pass said check, nor did Will Travis drive him to the business known as Clay's Casino for the purpose of passing a forged check, nor did he discuss with the said Will Travis division of the monies to be received from the passing of the said check, the matters so sworn to being material, and the testimony of the said Eddie Murry being wilfully and corruptly false, against the peace and dignity of the State of Alabama."

The statement referred to in Count I of the indictment is set out below:

"My name is Eddie James Murry aka Ronnie Murry and I am 22 years old. I have been advised of my rights by Det. Capt. B. M. Bobo of the Selma Police Department and I have signed a waiver of my rights and make the following statement of my own free will.

"On November 30, 1976, about 10:00 P.M. I was over at Will Travis's house located at the Barbecue Spot on Minter Avenue and Travis told me about William Smiley having some checks on the City Produce Company and that I could probably get one of them from Smiley, get it cashed and give Travis part of the money. Both Travis and I went to Smiley's house on Philpot Avenue and Smiley gave Travis one of the checks on the City Produce Company that was dated November 30, 1976, made payable to James Sanders in the amount of $85.00 signed M. R. Carson. Will and I then got into Will's car and drove to Church's Chicken on Broad Street and Travis waited in the car while I went over to Clay's Casino and tried to get Mr. Clay to cash the check for me. Mr. Clay told me that he did not have enough money up front and that he would have to go into the house and get enough money to cash the check. He also told me that he didn't cash checks for people who didn't buy anything from him. I told him that I would take $1.50 worth of baloney. I was waiting on Mr. Clay to cash the check and cut the baloney for me when the police arrived and arrested me for forgery. They brought me to the Selma Police Dept. and I signed a waiver of my rights on December 1, 1976, at 7:50 A.M. but at that time I told Capt. Bobo that I had not tried to cash my check. On December 2, 1976, Capt. Bobo again advised me of my rights after I had sent a message to him that I wanted to talk with him and I signed this waiver of rights on December 2, 1976, at 2:12 P.M. I had decided at this time to tell the truth.

"This is a true and correct statement to the best of my knowledge.

Subsequently, appellant was duly arraigned, in the presence of counsel, and he entered a plea of not guilty to the charge against him. Appellant received a trial by jury and was found guilty "as charged in the indictment," appellant having made no motion that the State elect which count should go to the jury. The trial court in accord with the jury's verdict adjudged appellant guilty and sentenced him to five years of imprisonment in the penitentiary. Appellant having been found indigent by the trial court is before this Court with appointed counsel and a free transcript.

A summary of the evidence follows, appellant preserving the question of sufficiency of the evidence through a motion to exclude and motion for new trial.

Sarah M. Greenhaw testified that she was employed as an Assistant Attorney General. On August 9, 1977, Mrs. Greenhaw tried the case of State versus Will Travis, CC-77-42, in Dallas County, on a charge of forgery. Appellant was a duly sworn witness in that trial. During the course of that trial the court allowed Mrs. Greenhaw to treat appellant as a hostile witness due to surprise. Prior to the trial, appellant had gone over a statement, which he had given to a detective, with Mrs. Greenhaw, affirming the truthfulness and correctness of it. In pre-trial interviews, appellant implicated Will Travis in a forgery; however, at trial, appellant testified that Travis was not involved in the forgery at all. Appellant testified, in response to Mrs. Greenhaw's questions, that he had lied in his prior statement and had lied in pre-trial interviews.

Mrs. Greenhaw identified a statement by appellant, given to a Captain Bobo, as the one which appellant repudiated at the Travis trial.

Neal Clingan testified that he was employed by the Dallas County Circuit Court as a Court Reporter. Clingan identified a transcription of appellant's testimony at the Travis forgery trial and testified that he reported and transcribed the testimony in that case. Clingan certified the transcription as true and correct and it was introduced into evidence without objection. Clingan then read appellant's previous testimony to the jury. In that testimony, appellant repudiated every material element of his statement to Captain Bobo, which has been previously set out.

Will Travis, Jr., testified that he was tried for forgery in August of 1977, and that appellant was a witness in the case. Travis further testified that he had entered a guilty plea to the forgery charge.

William M. Bobo testified that he was Captain of Detectives for the Selma Police Department. Bobo identified a waiver of rights form and a statement, both signed by appellant on December 2, 1976. The statement is set out above, following the indictment. These two documents were placed in evidence over appellant's objection.

Bobo further testified that appellant made this statement after his arrest at Clay's Casino for forgery. Appellant's and Travis's fingerprints were on the check which was taken by police at the Casino. Bobo then read the statement to the jury.

On cross-examination, Bobo testified that, prior to giving the above mentioned statement, appellant told him that Travis had nothing to do with the forgery. Appellant implicated Travis after he spoke with his uncle.

George Jeffcoat testified that he was the State Parole and Probation Supervisor in Dallas County and that he was appellant's supervisor in August, 1977, on a probationary sentence involving forgery. On August 10, 1977, Jeffcoat had a conversation with appellant at the Dallas County Jail.

On voir dire examination, Jeffcoat testified that he had issued an authorization of arrest for appellant because of probation violation. From the record ". . . I went to the jail to ask him about the charge of perjury. I asked him if he had in fact perjured himself in the trial of Will Travis and he explained to me in detail the circumstances of his testimony. And he stated that he had perjured himself because he had been pressured by members of Will Travis' family to do so."

Jeffcoat further testified that he did not advise appellant of his Miranda rights at any time prior to obtaining this statement. Nor did appellant have an attorney present until after this...