Smith v. State

Decision Date14 March 1968
Docket Number4 Div. 214
Citation210 So.2d 826,282 Ala. 268
PartiesBurnist Orville SMITH v. STATE of Alabama.
CourtAlabama Supreme Court
John C. Walters and E. C. Orme, Troy, for appellant

MacDonald Gallion, Atty. Gen., and W. Mark Anderson, III, Asst. Atty. Gen., for the State.

LAWSON, Justice.

A jury of Pike County, Alabama, found Burnist Orville Smith guilty of the first degree murder of Mrs. Foy Post Boone and fixed his punishment at imprisonment for life. Judgment and sentence were in accord with the jury's verdict. Smith has appealed to this court.

Mrs. Boone, eighty-one years of age, lived alone in her home on North Brundidge Street in Troy, Alabama. Around two o'clock on Sunday afternoon, December 15, 1963, Lester Little, who lived in the home of Mrs. Jean Enzor, which was situated next door to Mrs. Boone's home, went to the home of Mrs. Boone 'to check the water pipes for her against freezing.' He opened the screen door and then pushed open the wooden door which led directly into the living room. He stepped just inside the door and called Mrs. Boone two or three times and then looked to his left and saw Mrs. Boone 'laying on the far end of the couch.' Little returned to the home of Mrs. Enzor and told her he thought Mrs. Boone was dead. Mrs. Enzor called the police. Mrs. Boone had not been seen by her neighbors since Thursday, December 13, 1963.

Chief of Police Potts and Police Officer Barrow arrived at Mrs. Boone's home at about 2:36 P.M. Pike County Sheriff Davis was called by Chief Potts and he arrived on the scene within a short period of time. Either Chief Potts or Sheriff Davis called the Pike County Coroner, Robert A. McGehee, who was a practicing mortician. McGehee arrived at Mrs. Boone's home shortly after receiving the call.

Coroner McGehee testified in substance that when he entered Mrs. Boone's living room, Mrs. Boone 'was on the sofa lying with her body, the upper part of her body, on the sofa and her knees were on the floor and her head was turned to her right and her right arm was lying--she was kind of over in this position' (indicating). Mrs. Boone was dead. Her body 'was discolored, kind of bluish in some spots, some places a bluish and a deep red color and some scratches or abrasions on the body.' A lady's stocking was around her neck, which stocking had been knotted and twisted with a stick. There were marks on her neck under the knotted and twisted stocking. The coroner testified that the death of Mrs. Boone was caused by strangulation.

The shade on the glass part of the front door was pulled down and the shade on the only window which faced the street was pulled down as far as it could go. Pillows had been placed beneath the window shade so that one could not see into the living room from the street or sidewalk.

Mrs. Boone had two diamond rings which she wore at all times. One was a solitaire, a so-called mine cut diamond, which had apparently been given to her by her husband as an engagement ring shortly before 1900. The other was a cluster ring made up of seven smaller diamonds. These rings were not on Mrs. Boone's fingers when her body was found. She also owned a watch which had very small diamonds in it. A search of Mrs. Boone's home failed to disclose the rings or the watch.

Mr. B. J. Gatlin, an Investigator for the Alabama Department of Public Safety, arrived Dr. Paul E. Shoffeit, a toxicologist and Assistant Director of the State Department of Toxicology and Criminal Investigation of the State of Alabama, performed an autopsy on the body of Mrs. Boone on December 16, 1963 at McGehee Funeral Home in Troy. He expressed the opinion that the cause of death 'was due to the strangulation as a result of a ligature around the neck.' He also expressed the opinion that Mrs. Boone had been dead two or three days before her body was embalmed.

at the Boone residence shortly after [282 Ala. 273] 3:00 P.M. December 15, 1963. Mrs. Boone's body had not been removed nor its position altered before Gatlin's arrival. The stick which had been used to tighten the stocking around her neck had slipped out from under her arm. Gatlin took pictures of the body, which pictures were admitted in evidence.

On February 25, 1964, the then Circuit Solicitor of Pike County, now Judge Riley Green, Jr.; Investigator Gatlin; Chief of Police Potts and Sheriff Pressley Davis went to Chattanooga, Tennessee. After they arrived there a Tennessee investigator accompanied them to Quarles Jewelry Store or Shop where Mr. Quarles delivered to them two separate packages of diamonds. One package contained eight diamonds, a solitaire and seven smaller diamonds, and the other package contained twenty-seven very small diamonds. The two packages of diamonds were delivered to them by Mr. Quarles in a box which was in a paper container on which was printed: 'F. B. Quarles--Jeweler, 205 James Building, Chattanooga 2, Tenn.' Immediately beneath the printing was written,

B. O. Smith was apparently a native of

B. O. Smith was apparently a native of Pleasant Hill, Tennessee, but at the time of Mrs. Boone's death he was living in Troy, Alabama, where he was employed by A. T. Vaughn, Jeweler. He had been in Troy since 1962 and lived in a room in the back part of the building occupied by his employer.

A warrant for Smith's arrest was issued on February 27, 1964, but had not been executed prior to five o'clock P.M. of that day, when he complied with the request of Investigator Gatlin to accompany him to the Pike County Courthouse for 'the purpose of investigation.' Gatlin was later joined by Pike County Solicitor Oliver W. Brantley, who joined in the questioning. The interrogation or questioning ended at the Pike County Courthouse sometime between eight and nine o'clock that night. But Gatlin, Brantley and Smith drove to Montgomery that night and did not return to Troy until the following morning.

Apparently the warrant for Smith's arrest was executed soon after their return to Troy, for he was in jail on March 11, 1964, when he was indicted by a grand jury of Pike County for the first degree murder of Mrs. Boone.

On May 15, 1964, the trial judge ascertained from Smith that he had not employed counsel and was financially unable to do so. Smith was at that time advised by the trial court that counsel would be appointed to represent him prior to June 5, 1964, the day set for arraignment.

On May 22, 1964, in the presence of Smith, the trial court appointed Hon. E. C. Orme and Hon. John C. Walters to represent him. Mr. Orme and Mr. Walters are both able lawyers who have had many years of experience in the trial of criminal cases.

On June 5, 1964, the date set for arraignment, Smith and his court-appointed lawyers were present in open court when one of Smith's lawyers advised the trial court that Smith was not ready for arraignment in that his counsel wished to obtain the report made by Gatlin of his investigation. The trial court declined to On June 26, 1964, Smith's lawyers filed on his behalf eight motions wherein the trial court was requested to order the 'State to permit the defendant to inspect, or copy, or photograph the hereinafter described books, papers, documents or tangible objects obtained from defendant, or obtained by others by seizure or process.' We will not at this point delineate the articles referred to in the eight motions.

postpone the arraignment. Before pleading to the indictment, counsel for Smith requested that the trial of the case not be set for the week of July 6, 1964. This request was denied by the trial court. Thereupon, Smith and one of his lawyers pleaded Smith not guilty.

The trial court denied each of the eight motions on June 30, 1964. On the same day counsel for Smith orally moved the court to issue subpoenas duces tecum to the Circuit Solicitor to produce each of the articles enumerated in the eight written motions for inspection by the defendant and his counsel and to enable the trial court to 'inspect the matters sought and determine separately and severally the materiality of each either as to guilt or punishment and if the Court finds any of such matters material separately and severally either as to guilt or as to punishment, then the Court permit defendant's counsel to inspect the matters or copy them.'

Also, on June 30, 1964, counsel for Smith filed a written motion to suppress certain articles alleged to have been seized under search warrants which warrants, the movant alleged, in effect, were not issued 'upon probable cause' and were, therefore, issued contrary to the '4th Amendment to the U.S. Constitution' and contrary to the '14th Amendment to U.S. Constitution' and contrary to 'Section 5, Article 1, of Alabama Constitution.'

The oral motion or motions for the issuance of subpoenas duces tecum and the written motion to suppress were denied by the trial court on June 30, 1964.

On July 3, 1964, the trial court set aside its order of June 30, 1964, in so far as it denied Smith's motion No. 7, wherein he sought permission to inspect the diamonds which the officials had secured in Chattanooga, Tennessee. The trial court at that time entered an order to the effect that Smith and his counsel be permitted to inspect the said diamonds in the presence of Sheriff Davis, who was in possession of them.

On Monday, July 6, 1964, the day set for the trial of the case, counsel for Smith asked that the case be continued until the following Thursday, which was July 9, 1964. The trial court so ordered.

On Wednesday, July 8, 1964, counsel for Smith moved that the trial of the cause be continued 'for a period of three or four weeks.' The basis of this request was that counsel needed that much time within which to locate one Fleming or Femming and because counsel had just heard that a resident of Troy by the name of 'Bill Walton had stated to the police that he killed Mrs. Boone' and also because counsel for Smith had just heard that 'some television...

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