Kelly v. State
49 So. 535
Ala.
1909
Check Treatment
MAYFIELD, J.

Thе indictment in this case was returned on March 7, 1908. The accused was arraigned on March 17, 1908, and the trial was set for April 9th following. On the day set for trial accused moved the court for a change of venue. The application was sworn to by accused'. No affidavits were offered in support of the application, and no other evidence was offered to support the averments of the application or petition for the change of venue. The court, on motion of the solicitor, dismissed the application. On this showing we are not able to say that there Avas error in the dismission or-denial of the appliсation.

It has been held that the application comes too late, if not filed until the day of trial, unless some good reason is shown for the delay. None wаs shown in this case,, so we cannot say the dismissal was error. — Fallin’s Case, 86 Ala. 13, 5 South. 423; Byers’ Case, 105 Ala. 31, 16 South. 716; 1 Mayfield’s Dig. p. 858. Had this application been made in time and supported by proof, we-think the change of vеnue should have been granted. There can be no doubt that there was intense feeling and prejudice prevailing in Talladega county at the time of this trial аgainst all persons charged with the murder of Police Officer Thompson; this being the offense with which the accused, together with a number of other negroes, was charged. But on the, showing made in support of the application we cannot say that it was error-to deny the change of venue.

Continuances are within thе discretion of the trial court, and its action in granting or refusing a continuance ‍‌​​​‌‌‌‌​‌​‌‌​‌‌​​‌​‌‌‌​‌‌‌​​​‌​‌‌​​‌‌​‌​​‌​‌‌‌​‍will not be reviewed by this court on appeal, unless a gross abuse of the discretion is shown. — White v. State, 86 Ala. 69, 5 South. 674; 1 Mayfield’s Dig. p. 232.

The accused was not denied his constitutional right to be confronted by the witness against him, nor to have *52compulsory process for his witnesses. Many of his witnessеs were confessedly secreting themselves to evade arrest upon the charge of murder. The state was required to admit a showing for the absent witnesses fоr defendant. To have, issued process for them at the time application was made would clearly have been unavailing for that trial. — Winter v. State, 123 Ala. 1, 26 South. 949; Walker v. State, 117 Ala. 85, 23 South. 670.

There was no error in denying to defendant the light to ask a state’s witness whether or not the witness was a beginner at the game of craps. It was not a proper inquiry on this trial.

There ivas nо error in allowing the introduction in evi- ■ deuce of the municipal ordinances of Talladega; proper predicates of identification and prоof having been made, and there being ‍‌​​​‌‌‌‌​‌​‌‌​‌‌​​‌​‌‌‌​‌‌‌​​​‌​‌‌​​‌‌​‌​​‌​‌‌‌​‍proof tending to show that defendant was violating one of those ordinances when the deceased police officer, in attempting to arrest defendant, and others engaged with him, was killed. — Selma Co. v. Owen, 132 Ala. 430, 31 South. 598; Barnes v. Alexander City, 89 Ala. 602, 7 South. 437.

We are unable to see any possible relevancy of the evidence as to where the state’s witness got the pistol in question. Furthermore, it was not made to appear what the answer would be, -so as to allow the court to know whethеr the evidence would be relevant or not; and the trial court cannot be put in error unless it be shown that the proposed evidence was relevant.- Ross v. State, 139 Ala. 144, 36 South. 718.

When the defendant in a criminal case elects to testify for himself as a witness, he thereby waives his constitutional right of not being compelled to give evidence against himsеlf as to that particular crime for which he is on trial; but he thereby elects to assert his other statutory right to testify in his own behalf, and if he -so elects *53to testify he beсomes subject to cross-examination and impeachment, in the same manner and to the same extent as other witnesses in that particular trial. — Const. 1901, § 6; 1 Mayfiеld’s Dig. '882. Having voluntarily become a witness for himself, he may be questioned by the state as to prior statements made by him, whether such statements are shown to have been voluntary or not, and his answers thereto may be contradicted- by other evidence. —Smith v. State, 137 Ala. 28, 34 South. 396; Hicks v. State, 99 Ala. 169, 13 South. 375. The court in this case however, seems to have been cautious аs to admitting the confessions or statements by the defendant in the nature thereof, and required the jury to retire, and required ‍‌​​​‌‌‌‌​‌​‌‌​‌‌​​‌​‌‌‌​‌‌‌​​​‌​‌‌​​‌‌​‌​​‌​‌‌‌​‍a, predicate to be laid, and requirеd the solicitor-to show affirmatively that the statements of defendant were made voluntarily, before allowing proof of them against the accused.

The dеceased was a very popular and faithful police officer of the city of Talladega. The defendant was a negro, and was present and engaged in betting at a game of craps with a half dozen or more negroes. The game of craps was being carried on within a mile of Talladega, in a road. It was at night, and the defendant and the others were playing by a firelight and one small lamp. In the midst of this game they -were surprised by the deceased and other officers, who came suddenly upon them to arrest them for violating the law. Confusion and consternation seem to have prevailed among the particiрants in the game at this time. The deceased caught hold of defendant and was hollowing to the other negroes to throw up their hands or to halt; some of them running. The other officers were in pursuit of some of the fleeing negroes, while deceased was holding defendant and endeavoring to arrest others who were аttempting to escape. At this juncture deceased was shot — by whom it *54is not certain. He was dead when the other officers returned, which was within a few minutes; and all оf the negroes, including the defendant, had fled. The defendant and two other negroes were shown to have had pistols on the occasion referred to. The defendant’s pistol was found near the scene of the killing, and appeared not to have been discharged.

There was some evidence tending to show a conspiracy-on the part of defendant and other crap players to kill the deceased and other officers, and some evidencе of threats on the part of defendant to kill deceased if he attempted to arrest defendant. We find no error in the rulings of the court as to the evidenсe tending to show the conspiracy or threat on the part of the defendant, nor do we find any errors as to the charges of the court relating to these or any other questions involved in the trial. The court seems to have required proof to show that the declarations of defendant ‍‌​​​‌‌‌‌​‌​‌‌​‌‌​​‌​‌‌‌​‌‌‌​​​‌​‌‌​​‌‌​‌​​‌​‌‌‌​‍were voluntary, before аllowing proof of them as admissions.

Charges 6 and 8, requested by the defendant, were properly refused.

We deem it unnecessary to treat each objection and question separately, further than we have done. We have examined the record carefully, for the reason that it is not made as certain to us as it might be that the defendant was properly convicted. There was, however, ample evidence from which the jury might infer all the necessary elements tо support the verdict of guilty, found by them. The jury alone have the power to draw these inferences from the facts proved. Neither this court nor the trial court has power to reverse their findings as to facts, or to reverse the inferences by them properly drawn from the evidence.

If it should hereafter apрear that the alleged confession made by defendant to the state’s witness Robert *55Harper in tbe guardhouse at Dothan, Ala., was false, then this would he a strong сase for executive clemency. The jury probably believed this alleged confession. If it is true, of course, the defendant was properly convictеd of murder in the first degree; but, if it is false (and it bears strong indications of being ‍‌​​​‌‌‌‌​‌​‌‌​‌‌​​‌​‌‌‌​‌‌‌​​​‌​‌‌​​‌‌​‌​​‌​‌‌‌​‍such), then there was scarcely enough evidence, aside from this, to support a conviction for murder. This was properly a question for the jury, and they may have properly decided; but, if their finding be wrong, we, as an appellate court, have no right or power to correct. Executive clemency is the only relief.

Affirmed.

Dowdell, C. J., and Simpson and Denson, JJ., concur.