Smith v. State
| Citation | 46 Ala.App. 157,239 So.2d 230 |
| Decision Date | 01 September 1970 |
| Docket Number | 4 Div. 14 |
| Parties | Ronald E. SMITH v. STATE |
| Court | Alabama Court of Criminal Appeals |
Ira DeMent, Montgomery, for appellant.
MacDonald Gallion, Atty. Gen., and Walter S. Turner, Asst. Atty. Gen., for the State.
Conviction of perjury during a nonfelony trial, i.e., as a sworn witness in a hearing as to revoking appellant's probation. Sentence: five years. Code 1940, T. 14, § 377.
The instant indictment reads as follows:
'The Grand Jury of said County Charge that, before the finding of this Indictment Ronald E. Smith, alias Ronald Edward Smith, whose name is to the Grand Jury otherwise unknown, on his examination as a witness, duly sworn to testify by Roy O. Hill, Clerk of the Circuit Court of Houston County, Alabama, who had authority to administer such oath, on the trial or hearing for revocation of probation of the said Ronald E. Smith, alias Ronald Edward Smith, in the Circuit Court of Houston County, Alabama, under an arrest order issued by the presiding Judge of the 20th Judicial Circuit of Alabama charging that the said Ronald E. Smith, alias Ronald Edward Smith had violated the terms of his probation previously granted to the said Ronald E. Smith, alias Ronald Edward Smith, by the said Court in the case of State of Alabama vs. George E. Thomas, Jr. and Ronald E. Smith, in that the said Ronald E. Smith, in that the said Ronald E. Smith, alias Ronald Edward Smith had committed the offense of Impersonating an Officer in Clayton County, Georgia; falsely swore that he was an Honorary Deputy Sheriff in September, 1966, that a card commissioning him as an Honorary Deputy Sheriff in Long County, Georgia, had been issued to him in the previous summer and that he had said card with him on September 21, 1966, the matters so sworn to being material and the testimony of the said Ronald E. Smith, alias Ronald Edward Smith being wilfully and corruptly false, against the peace and dignity of the State of Alabama.
'William J. Baxley
'District Attorney of the 20th Judicial Circuit'
We take the issue to turn upon (1) Smith's testimony; (2) its falsity; and (3) its materiality.
Falsity, vel non, revolves around whether Smith impersonated an officer in Clayton County, Georgia, being an offense. No proof was made of the law of Georgia as to the ingredients of this offense. 1
Smith's demurrer assigns in Ground 7 the following:
and in Ground 12 assigns:
'(12) For that the allegation therein contained that, 'Ronald Edward Smith had committed the offense of impersonating an officer in Clayton County, Georgia', is but a legal conclusion and is insufficient to apprise the Defendant of what officer he had impersonated and how and when he had impersonated any such officer.'
The demurrers were by formal judgment overruled September 26, 1968. Thereafter, on November 19, 1968, issue was joined on Smith's plea of not guilty to the indictment.
Smith has previously appealed to this Court from the earlier judgment revoking probation. Smith, (4th Div. 617), affirmed September 12, 1967 on authority of Hemphill v. State, 41 Ala.App. 441, 134 So.2d 432.
The record in that case contains no transcript of testimony. The pertinent testimony on that hearing was adduced in the instant perjury trial by the State through its witness Bert Dummitt, the former official court reporter of Circuit Judge Deener Baxley.
Excerpts from Mr. Dummitt's transcription comprise State's Exhibit #1 and Defendant's Exhibit #1, which read as follows:
'STATE'S EXHIBIT #1
'Q Were you an Honorary Deputy Sheriff?
'A Yes, sir, I sure was.
'A I was an Honorary Deputy Sheriff. I didn't have any authority to make an arrest.
'Q When was this card issued to you? When did you get it?
'A Along back in the summer.
'Q In the summer?
'A Yes, sir.
'Q Did you show it to that lady over there that night? Did you have it with you that night?
'A Yes, I had it with me that night.
'Q But you had it with you that night?
'A I think I had it in my billfold that night, yes, sir.
'Q You say you got it back in June?
'Q Do you usually carry this with you?
'A No, sir, I sure don't.
'Q How did you happen to get it today?
'A My wife brought it to me.
'Q Brought it to you?
'A Yes, sir.
'Q And she got it out of a file cabinet in your home?
So the State, as an initial premise, had the burden of proving to the required degree that Smith Committed (not was 'convicted of') 2 the offense of impersonating, etc.
To this end the District Attorney called E. D. Hood, a police officer of the County of Clayton, Georgia. He testified that he went to the scene of an automobile accident in the early morning hours of September 21, 1966.
Under voir dire examination Hood was asked as to giving the Miranda warnings to Smith whom he had brought back to the scene. Smith had been the passenger in a wrecker which turned around when it approached the wrecked cars with the police vehicle lighted.
Hood received radio information that one of the cars was registered to Smith's wife.
Hood, on voir dire, testified in part:
'Q And you had focused your investigation on Ronald E. Smith, had you not?
'A Right.
'Q And you were attempting to question him concerning facts involved in an alleged crime in Georgia, were you not?
'A We was not questioning Mr. Smith at that time.
'Q You were talking to him, weren't you?
'A We asked him to go back to the scene of the accident.
'Q All right. And you were talking to him?
'A Right.
'Q All right. And you did not advise him of his rights under the Federal Constitution, did you?
'A Didn't know anything about any rights at that time.'
Defense objection was sustained.
After the noon recess, a hearing with the defendant present was held in the judge's chambers out of the presence of the jury. At the conclusion of Hood's examination, the trial judge overruled defense objection to Hood's being asked as to what Smith told him after Hood had brought Smith back to the scene.
The trial returned to the courtroom and with the jury back in the box the transcript shows (in pertinent part):
'Q Tell what was said in the presence of this defendant to him and by him there at the scene on September 21, at approximately 4:00 o'clock in the morning there is Clayton County, Georgia at the scene of that accident?
'Q Go ahead.
'A We arrived back at the scene with Mr. Smith and in our routine investigation we asked him about being a Deputy Sheriff and he stated that he was a Deputy Sheriff in Cobb County.
'Q In where?
'A Cobb County.
'Q Cobb County, Georgia?
'A Yes, sir. And we told him we would check with Sheriff Kermit Sanders in Cobb County to see if he was a Deputy and he changed his mind and didn't want us to check and he said he was not a Deputy Sheriff.
'Q That was this defendant Ronald Smith who said that?
'A Yes, sir.
'MR. BAXLEY: Your witness.
'CROSS EXAMINATION
'by Mr. DeMent:
'Q Mr. Hood, have you read this indictment?
'A No, sir.
'Q Are you aware of the fact that it charges the defendant with falsely swearing that he was an Honorary Deputy Sheriff?
'A I don't know about him being an Honorary Deputy Sheriff.
'Q Your only conversation had to do with his being a Deputy Sheriff, is that right?
'A That is true.
'Q From your knowledge in Georgia is there any difference between a Deputy Sheriff and an Honorary Deputy Sheriff?
'A Yes, sir.
'Q How much difference?
'A Well, a Deputy Sheriff is paid and an Honorary Deputy pays to be an Honorary.
'Q What did Honorary Deputy Sheriffs do?
'A Not much of anything.
'Q Is it just a courtesy or honor?
'A Yes, sir, more or less.
'Q They don't have any duties do they?
'A No, sir.
'Q They don't make arrests?
'A Not as I know of.
'Q They don't serve papers?
'A No, sir.
'Q They don't wear uniforms?
'A No, sir.
'Q They don't get paid by the State or the County?
'A No, sir.
'Q They don't keep regular hours or any hours with the Sheriff's department?
'A No, sir.
'Q And you testify that all of your conversations with this defendant was to the effect of his being a Deputy Sheriff?
'A Yes, sir.
'Q And there was nothing mentioned to you about Honorary Deputy Sheriff?
'A Not that I can recall, no, sir.
'Q All right. Now, do you know whether or not the defendant was in fact an Honorary Deputy Sheriff in September of 1966?
'A No, sir, I do not.
'Q You can't tell this jury that he was not, can you?
'A No, sir.
'Q Do you know whether a card commissioning him as an Honorary Deputy Sheriff in Long County, Georgia, had been issued to him in the previous summer?
'A No, sir, I do not.
'Q And I am reading from...
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