Roynica v. State

• Decision Date: 01 October 1974
• Docket Number: 5 Div. 130
• Citation: 54 Ala.App. 436,309 So.2d 475
• Parties: Phillip Robert ROYNICA v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 475

309 So.2d 475

54 Ala.App. 436

Phillip Robert ROYNICA v. STATE.

5 Div. 130.

Court of Criminal Appeals of Alabama.

Oct. 1, 1974.

Rehearing Denied Nov. 12, 1974.

John S. Glenn, Opelika, for appellant.

William J. Baxley, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State.

PER CURIAM.

The grand jury of Lee County returned an indictment (Tr. 106) against the appellant, an indigent, for murder in the first degree. The alleged victim was Burt Michael Froney. The jury returned a verdict for murder in the first degree with punishment therefor fixed at life imprisonment.

The same grand jury returned another indictment (Tr. 114) against the same appellant, Roynica, for assault with intent to murder Sharon Faye Froney, wife of the deceased. The jury convicted him of assault with intent to murder and fixed his punishment at twenty years imprisonment in the penitentiary.

Both indictments were tried together before the same jury. This procedure was by agreement of the trial court, the appellant and respective counsel.

Mrs. Froney testified for the state that she was a victim of knife wounds when her husband was killed by a knife assault. The testimony of Mrs. Froney was essentially the same as her testimony in the case of Ronald Keith Connell v. State. The opinion in the Connell case was released on May 7, 1974 and is now subject to review by the Supreme Court of Alabama. We will not repeat the testimony. If necessary, we will refer to her testimony in the instant case, but will not burden this opinion with a repeat of the testimony in Connell.

I.

Appellant, along with three companions involved in the alleged offense, was arrested in a California motel, pursuant to the mandate of a federal warrant charging the appellant and his companions with flight to escape prosecution in Alabama for the commission of a felony, namely, for the murder in the first degree of Burt Michael Froney. The warrant was issued pursuant to Title 18, § 1073, United States Code, Crimes and Criminal Procedure. This § 1073 reads as follows:

'Whoever moves or travels in interstate or foreign commerce with intent either (1) to avoid prosecution, or custody or confinement after conviction, under the laws of the place from which he flees, for a crime, or an attempt to commit a crime, punishable by death or which is a felony under the laws of the place from which the fugitive flees, or which, in the case of New Jersey, is a high misdemeanor under the laws of said State, or * * * shall be fined not more than $5,000 or imprisoned not more than five years, or both.'

Appellant contends that the federal warrant was invalid for lack of probable cause; that his arrest thereunder was illegal and invalid, because it was premised on an invalid Alabama magistrate's warrant issued by the Circuit Judge of Lee County. (Title 15, § 399, Recompiled Code 1958). Appellant contends that the affidavit supporting the Alabama arrest warrant was conclusional.

The affidavit that supports the issuance of the flight warrant for the arrest of appellant (see Exhibit 20, Tr. 102) was made by Thomas J. McCrystle, an FBI agent. The warrant appears on page 101 of the transcript. This affidavit is based on information that Agent McCrystle received from Sheriff James Pearson of Lee County that on January 10, 1972, warrants were issued in Lee County for the arrest of appellant and his companions (listed by name) charging murder, a felony cognizable under the penal laws of Alabama. The agent's affidavit also states that individuals answering the description of the four individuals were observed hitchhiking on I--65, in the vicinity of Tulsa, Oklahoma.

We quote from United States v. Mayer, 22 F.2d 827, (3 Cir.) wherein that court quoted on page 829 as follows:

"On the question of probable cause, it is well established that the indictment itself, together with proof that the defendant is one named in it, is prima facie evidence of probable cause, but not conclusive evidence. Beavers v. Henkel, 194 U.S. 73, 24 S.Ct. 605, 48 L.Ed. 882; Benson v. Henkel, 198 U.S. 1, 25 S.Ct. 569, 49 L.Ed. 919; Hyde v. Shine, 199 U.S. 62, 25 S.Ct. 760, 50 L.Ed. 90; Greene v. Henkel, 183 U.S. 249, 22 S.Ct. 218, 46 L.Ed. 177; Tinsley v. Treat, 205 U.S. 20, 27 S.Ct. 430, 51 L.Ed. 689. * * *"

It further appears in the same case, which quotes United States v. Gault, No. 513, 271 U.S. 142, 46 S.Ct. 459, 70 L.Ed. 875, May 3, 1926, as follows:

"* * * referring to the committing magistrate: 'He is not intended to hold a preliminary trial, and, if probable cause is shown on the government's side, he is not to set it aside because on the other evidence he believes the defendant innocent.' * * *"

We hold that in the instant case, the United States magistrate, Mr. Denson, had a lawful right to act on Agent McCrystle's statement that the warrant for appellant's arrest, according to his informant Sheriff Pearson, had been issued and was outstanding. The information came from a reliable source, the Sheriff of Lee County, and the warrant, as in the indictment, was prima facie evidence of probable cause. We hold that under the circumstances, the flight warrant based, as it was on the state warrant, was valid and authorized the arrest of the four alleged fugitives named in the warrant.

However, it is said in State v. Ford, Mo.1973, 495 S.W.2d 408, that a flight warrant was itself probable cause for FBI agents to arrest appellant, and it was not necessary that the agent be possessed of all the information that was presented to the judicial officer at the time the warrant was issued.

There was no duty on the part of the federal magistrate to go behind the state warrant of arrest for murder and investigate the validity vel non of such state warrant, which, as we have already stated, was prima facie evidence of probable cause.

II.

The FBI agents in California acted on a teletype message from Alabama, which stated the appellant was wanted for unlawful flight to avoid prosecution for murder in Alabama. Having determined, supra, that the flight warrant was valid, the FBI officers had lawful authority to arrest appellant and his alleged partners in crime without physical possession of the flight warrant. Bowers v. Coiner, 309 F.Supp. 1064(7) (D.C.); Bartlett v. United States, 232 F.2d 135 (5th Cir. 1956); United States v. Donnelly, 179 F.2d 227 (7th Cir. 1950); Spurlin v. State, 46 Ala.App. 485, 243 So.2d 758, writ denied 286 Ala. 738, 243 So.2d 763; Gill v. U.S., 421 F.2d 1353, cert. den., 400 U.S. 851, 91 S.Ct. 85, 27 L.Ed.2d 89, rehearing denied, 400 U.S. 920, 91 S.Ct. 177, 27 L.Ed.2d 161.

III.

When the FBI agents were making the arrest of appellant et al. in the motel room, to which they obtained lawful entry, they observed three knives, a black sheath and a pair of white boots. These knives, also some other articles, were in plain view of the agents and within reach of one or more of the fugitives. The seizures were incidents of the arrest of appellant. We have determined, supra, that the arrest was lawful and effected pursuant to the mandate of a lawful flight warrant issued in Alabama.

The state offered evidence of a sequence of possession relative to these articles and their unchanged condition. They were properly admitted in evidence as part of the res gestae of the alleged crime.

IV.

Appellant objected to the introduction in evidence of the four flight warrants for the arrest of the appellant and his three companions (see Exhibit 20, Tr. 98--102). The ground of objection was that the exhibits were copies of the originals that had not been accounted for. There was competent testimony by Agent McCrystle and federal commissioner Denson that the copies were correct copies of the originals that were sent to an official custodian of the government. The original warrant was a public record. We quote from McElroy, Law of Evidence in Alabama, 2d Ed., Vol. 2, Key Note No. 218.02, page 150:

"Proof of the content of the public record may be made by a copy thereof--at common law, by a sworn or examined copy; and usually, under a statute, by a certified copy. Miller v. Boykin, 70 Ala. 469, 478.

"The term 'examined or sworn copy' of a public record means a copy which a witness testifies was correctly copied by him from, or was compared by him with, the oridinal (sic) and found to be a correct copy of the original. 20 Am.Jur., Evidence, sec. 1038." Ex parte State of Alabama ex rel. Attorney General, Petition for Writ of Certiorari to the Court of Criminal Appeals (Re: Thomas William Yelton v. State of Alabama) Opintion released August 8, 1974.

We think that pursuant to Yelton v. State, Ala., and McElroy, supra, the copies were admissible.

V.

Appellant complains of error in the admission in evidence of the contents of a teletype message sent by an FBI agent from his office in Opelika, Alabama, to the FBI office in San Francisco, directing the arrest of appellant and his companions pursuant to the flight warrant. It appears in the evidence that FBI agent McCrystle, a witness for the state, testified that he sent a teletype message to the FBI office in San Francisco in which he stated that the warrants had been obtained and issued by a federal magistrate; that the warrants charged appellant and his companions with unlawful flight to avoid prosecution on a felony charge of murder; that the teletype requested that 'these people' be apprehended. All of this evidence was adduced without objection thereto. Then followed:

'Q. Was anything said in the teletype about what precautions to take if they--'

The followed appellant's objection that the teletype itself was the best evidence. No more evidence was adduced as to the contents of the teletype. The court overruled the objection. The objection came too late. It did not come until after the aforequoted question was answered. The witness had already testified as to the contents of the flight warrant. Ledlow v. State, 221 Ala. 511, 129 So. 282; Embrey v....