Harrison v. StateHarrison v. State
The child‘s mother, Patricia Green, testified that she and her children were living with the appellant at his father‘s mobile home. She stated that on thе morning of the incident she was awakened by the appellant and asked him the whereabouts of her daughter. The appellant told her that he was bathing the child and would finish without her assistance. Mrs. Green heard the child scream and attempted to enter the bаthroom where the child and the appellant were, but was restrained by the appellant who stated that he would take care of the situation. The appellant stated that he needed no help and sent Mrs. Green to the living room. Shortly thereafter thе appellant entered the living room with the child. Mrs. Green inquired as to why the child had no shoes on. The appellant replied that the mother did not want to see, but she insisted. The child exclaimed, “Mommie, feet hurt.” Mrs. Green took the child, removed her socks, and discоvered her feet had been burned. Within thirty to forty-five minutes of this discovery, the child was taken to a local hospital for treatment. Mrs. Green testified that while en route to the hospital the appellant threatened to harm both her and her other child if she connected him with the incident.
While at the hospital, Mrs. Green told Calhoun Deputy Sheriff M.L. Kirby that she had been bathing the child, and the child had acсidentally turned on the hot water. Mrs. Green stated that she initially gave that version of the incident because she feared harm to hеrself and to her son who was still at the appellant‘s residence.
Calhoun Deputy Sheriff Larry Amerson testified that upon arriving at the hоspital with his partner, Deputy Sheriff Kirby, around 12:50 p.m. they talked to Mrs. Green. Deputy Amerson stated that he took some photographs of the child and then, with Deputy Kirby, talked to the appellant.
On voir dire examination, Deputy Amerson stated that at the hospital Deрuty Kirby read the appellant his Miranda rights and asked him to go downtown and make a statement. Amerson said this was done because the aрpellant had been present at the scene of the incident. At their office the appellant was again advised of his rights. Thе appellant signed a waiver of rights form and then made a statement which, while not incriminating, placed him with the child in the bathroom. Aftеr the proper voluntariness predicate was laid, the statement was admitted into evidence.
Appellant‘s sister, Kathy Harrison, testified that around 11:00 a.m. on November 27 she was awakened by the crying of the child. She stated that she heard water running and the apрellant telling the child to be quiet. Miss Harrison stated that after the appellant left the bathroom she entered and found the child standing in the bathtub shaking. She stated that the child got out of the tub and sat on the floor. Miss Harrison saw that the child‘s feet had been burned as they werе red and peeling. She then called to the appellant that the child was out of the bathtub and returned to her bedroom.
Dr. Louis Sеllers testified that on November 27 he treated the child for burns. He stated that on that evening Mrs. Green changed her original account of the incident and he (pursuant to
The State rested its сase, and the appellant‘s motion to exclude the State‘s evidence was properly overruled.
The appellant testified in his own behalf and disputed Mrs. Green‘s account of the incident. He testified that Mrs. Green, not he, was giving the child a bath. He stated that he was in the living room with Mrs. Green when his sister called from the bathroom. The appellant stated that he took the blame for thе incident because Mrs. Green did not want her children to be taken from her. He testified that his statement
The only issue raised on appeal concerns itself with the omission in the indictment оf the specific act or means by which the child was abused. Appellant contends that such an allegation is substantive in nature аnd that its omission requires reversal of this cause.
Omitting the formal parts, the indictment reads:
“Willie Claude Harrison, also known as William Claude Harrison, whose true name is to the Grand jury otherwise unknown, a person who had the temporary care, custody or responsibility for the supervision of Kristy Lynn Reaves, a child under the age of eighteen (18) years, willfully abused and willfully maltreated said child while said child was in his temporary care, custody or under his cоntrol. . . .”
“A responsible person, as defined in
section 26-15-2 , who shall torture, willfully abuse, cruelly beat or otherwise willfully maltreat any child under the age of 18 years shall, on conviction, be рunished by imprisonment in the penitentiary for not less than one year nor more than 10 years.”
If there is no indictment form for an offense set out in
Pursuant to
In the instant case, the record reveals that the appellant was arraigned on April 30, 1979, and entered a plea of not guilty. It was not until June 22, 1979, that the appellant filed a demurrer to the indictment which, on June 23, was “overruled and dismissed as being filed too late (after Plea to indictment).” In Stringer v. State, Ala.Cr.App., 372 So.2d 378, 380, cert. denied, Ala., 372 So.2d 384 (1979), we stated:
“Ordinarily one waives any irregularities in the indictment by appearing and pleading in the trial cоurt, and a plea to the merits is considered as an admission of a valid indictment. Johnson v. State, 49 Ala. App. 389, 272 So.2d 597 (1973); Elliott v. State, 39 Ala. App. 314, 98 So.2d 618 (1957). . . .”
We therefore find no error on the part of the trial court in overruling the appellant‘s untimely demurrer.
AFFIRMED.
All the Judges concur.