Smith v. State
| Decision Date | 30 August 1973 |
| Citation | 291 Ala. 507,282 So.2d 907 |
| Parties | Homer Lee SMITH v. The STATE of Alabama. SC 359. |
| Court | Alabama Supreme Court |
Arnold W. Umbach, Jr., Opelika, for appellant.
William J. Baxley, Atty. Gen., Montgomery, and Samuel L. Adams, Sp. Asst. Atty. Gen., Dothan, for the State.
Homer Lee Smith was indicted by the Grand Jury of Lee County, Alabama, for the offense of burglary in the second degree. He was tried by a jury on a plea of not guilty. He was found guilty as charged in the indictment and was sentenced to ten years in the State penitentiary. He appealed his conviction and sentence to the Court of Criminal Appeals. On April 24, 1973 the appeal was transferred to this Court.
The victim of the alleged burglary was Moses Glenn who was working out a fine for D.W.I. at the Auburn police headquarters. Glenn testified that when he went to work on the morning of July 21, 1971, he left all the doors of his house locked. When he returned home in the afternoon of the same day, he found a door open and the screen off one widow. He went into a bedroom and noticed that the drawers of a chifforobe and chest of drawers were open. He called the police. He then noticed that a yellow sports shirt was missing. His wrist watch, cuff links, and a few other things left lying on a chair were also missing. Glenn, who was convicted of forgery in 1961, further testified that he had not given any person permission to enter his house.
The State's case was made on an alleged voluntary confession given by the accused, Smith, to Lt. Frank deGraffenried and Sgt. Murphy of the Auburn Police Department. Smith could not read or write, but could write his name. He allegedly confessed that he went into the house and took the yellow sports shirt. The alleged confession was taken in writing by the police, who read it back to the accused. He signed it.
The circumstances surrounding this alleged voluntary confession is the basis of this appeal.
After the jury had left the courtroom, and out of the presence of the jury, Lt. deGraffenried testified that he had advised Smith of all his constitutional rights and Smith made the statement voluntarily. The statement was then read. Defense counsel entered an objection to the admission of the statement.
The jury was brought into the courtroom and questions concerning the voluntariness of the statement were propounded to the officer. Defense was permitted to question on voir dire:
'A No, sir.
It is Smith's contention that the court erred in not allowing a complete inquiry into the conditions surrounding the taking of his statement before the jury.
The authorities cited by the trial court hold that after a person has been indicted, failure to bring him before a committing magistrate becomes a moot question. Trammell, supra. However, in this case, the issue of whether a preliminary examination was held, concerns an arrest and subsequent questioning on August 1st and 2nd. The defendant was not indicted until September.
A confession is not inadmissible solely because it was made after arrest by an officer and before the accused was taken before a committing magistrate. Myhand v. State, 259 Ala. 415, ...
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