50 So. 954 | Ala. | 1909
Lead Opinion
— 'The defendant was indicted and convicted of murder in the first degree, and the death ■sentence was imposed by the jury. The material facts, as stated by counsel for appellant, and necessary to an understanding of the case and of the questions raised on appeal, are as follows:
On the night of November 24, 1908, B. W. Drake, while asleep in his bed at his home, in Laneville, Hale county, Ala., was hit on the head with some heavy instrument and killed. His adjacent store was burglarized, and the store and residence set on fire; the fire being extinguished before gaining much headway. On the next •day one Charley Taylor, suspected of the crime, was apprehended, and confessed his guilt, implicating Ed How
On the 30th day of November, the judge of the Fourth circuit, Hon. B. M. Miller, made an order for a special term of the court to be begun on the said 30th day of November (see pages 1-3 of the record), and on that day proceeded to draw a grand jury, and drew a petit jury. On December 2d the grand jury was duly impaneled and organized, and on the same day said grand jury returned an indictment, charging this defendant, Ed Howard, with murder in the first degree (see pages 6-13 of record). On the same day, this appellant was brought into court, and being without counsel, and without the ability to employ counsel, the court appointed A. M. Tun-stall and E. S. Jack to represent him. The court thereupon set the 5th day of December to try this appellant on said indictment.
On the 5th day of December, the said case against this appellant was called for trial, and said appellant moved for a change of venue (see page 20 et seq. of record). In this sworn application it is set out that Mr. Drake, the deceased, was a white man of much prominence and popularity in the county; that the appellant was a negro boy; that Charley Taylor had confessed his guilt, and implicated the appellant; that articles assuming the guilt of this appellant and that of the others accused by Charley Taylor, appeared in the Greensboro newspapers, particularly the Watchman, a paper edited by the chairman of the county Democratic executive committee, a man in whom the people of Hale county
On the trial of the casé the state examined Turner Cash, Robert Campbell, E. E. Gewin, Charley Taylor, Etta Ward, Emma Williams, and Pick Bird. The testimony of none of these witnesses, except Charley Taylor, Emma Williams, and Etta Ward, tended to implicate appellant. Charley Taylor swore positively that he, Shad Williams, Joe McDaniels, and appellant plotted and accomplished the murder of Mr. Drake. The woman Emma Williams, the wife of one of the defendants, Shad Williams, testified that she heard a conversation between Charley Taylor, Joe McDaniels, Shad Williams, and appellant, in her house, on the Monday night before Mr. Drake was killed, in which conversation they all agreed to kill Mr. Drake. The woman Etta Ward testified that she was walking from the field, in the path that passed by Shad Williams’ house,-and while passing there she heard a conversation between Charley Taylor, Shad Williams, and appellant, in which they agreed to kill Mr. Drake. . This conversation was a few days before Mr. Drake was killed. She further testified that she, a few days before Mr. Drake Avas killed, saAv Charley Taylor, Shad Williams, Joe McDaniels, and appellant at the well in a conversation; that as she Avalked up they all stopped talking. The defendant, through his counsel, asked the Avitness Etta Ward the following' question: “Haven’t you heard of somebody down there being stripped and Avhipped because she had refused to say that she kneAV anything about the murder?” The state objected to this question, the court sustained the objection, and the defendant excepted. Defendant stated to the court that he expected to prov<j that the witness had heard that a woman had been stripped and whipped because she had refused to testify
Had all the facts stated in the motion for a new trial been conceded or confessed, it would, indeed, have been a strong showing for a change of venue; but all the facts necessary to entitle the appellant to a change were not confessed, but were denied, and affidavits were introduced on the hearing of the motion denying the existence of the facts material to entitle the defendant to a change of venue. There was no proof offered in support of the motion, other than the affidavit of the defendant. It was shown that he had been in jail nearly all the while since the commission of the offense, and hence had very little opportunity to know the condition of public sentiment for or against him. It is natural that public indignation should be aroused by the commission of such a crime as is conceded to have been perpetrated in this instance; but it is" not shown that it was so aroused' against this defendant individually, or so aroused, or so prejudiced, as to prevent a fair trial. While it is conceded that public indignation was aroused, and that there were rumors of mob violence, the very evidence introduced by the defendant disproves the rumor of a mob and of all violence. The clipping from the county paper, introduced by the defendant in support of his motion, is headed, “Humor of a Mob — False Alarm,” while the body of the notice shows that the rumor was false, that there was in fact no such danger, and no such public excitement, or anger as to justify any apprehension of violence; that the defendants were to be returned to the county, and that no attempt had been made to do
The question propounded to the witness Etta Ward called for purely hearsay evidence, a mere rumor, and was properly disallowed.
There was no error in refusing any of the charges refused to the defendant. Charge 1 was the general affirmative charge for the defendant, and was, of course, properly refused.
Charge 2, 3, 5, and 8 predicated an acquittal upon a reasonable doubt as to whether the accused and others conspired to kill deceased on a certain night at the house of Shad Williams. There was other evidence than this to corroborate the evidence of- the accomplice, an d hence evidence sufficient to support a conviction; this being the only theory on which these charges could be correct.
Charge 6 required an acquittal if any one juror had a reasonable doubt of guilt, and was on this account bad.
Charge 7 required the court to charge, as matter of law, that there was no corroborative evidence, as required by law, and was foe this reason properly refused.
Charge 8 is not a correct statement, in its entirety, as to the necessity and sufficiency of corroborative evi
Motions for new trials, or rulings thereon, in criminal cases, cannot he reviewed by this court on appeal.
If there had been no arraignment, and no plea of guilty interposed by the defendant, of course, it would be fatal on appeal. But the record proper shows the arraignment, shows that the defendant pleaded not guilty; in fact, the record proper shows all that is necessary 1o support the conviction. This is matter that must be shown by the record proper, and not by the bill of exceptions; hence, if the recitals of the record proper and those of the bill of exceptions differ as to this matter, the recitals of the record proper must control. If there was in fact no arraignment, and no plea interposed by or for the defendant, the recitals of the record proper as to this effect should have been corrected by appropriate proceedings. These necessary and proper recitals in the record proper cannot be disregarded on appeal by recitals in the bill of exceptions.
An arraignment at English common law was much more formal than with us now. Under the former, Lord Hale says: “An arraignment consists of three things: First, the calling of the prisoner at the bar by his name and commanding him to hold up his right hand, which, though it may seem a trifling circumstance, yet it is of importance, for, by holding up his hand, constat de persona indictati, and he owns himself to be of that name; second, reading the indictment distinctly to him in English, that he may understand the charge; third, demanding of him whether he be guilty or not guilty, and if ho pleads not guilty then the clerk joins issue with him cul. prist, and enters the prisoner’s plea, then demands how he will be tried. The common answer is, ‘By God and the country,’ and thereupon the clerk enters po. se., and prays to God to send him a good deliverance.”
The record proper in this case affirmatively shows this was done; but it is insisted that the indictment was not read to the accused at the time the trial was begun, that no plea was then interposed by the defendant, and no issue was joined thereon. It is not necessary that there should be two arraignments for one trial. The record affirmatively shows all that was necessary as to the arraignment before drawing the special venire for the trial.
Finding no error, the judgment must be affirmed.
■Affirmed.
Rehearing
— There is evidence in this record, tending to connect the defendant with the commission of the crime, other than that of the witnesses hypothesized in the charges complained of, which ivas not the fact in the record of McDaniel’s Case, 162 Ala. 251, 50 South. 324, which is referred to and insisted on by counsel.
