Murphy v. State

45 Ala. 32 | Ala. | 1871

B. F. SAFFOLD, J.

The appellants were tried upon an indictment for murder, and convicted of being guilty as charged in the indictment. They allege that there was error in the proceedings — 1st, in the refusal of the court to grant them a change of venue; 2d, in the omission of the jury to ascertain by their verdict the degree of murder of which they were guilty.

The form of an indictment for murder prescribed by the Revised Code makes no distinction of degree, but the statute defines the crime in two degrees, and directs a different punishment for each. Hence the necessity of ascertaining the degree by the verdict. — Revised Code, §§ 3653, 3654, 3657.

For the deficiency of the verdict the judgment must be reversed. The statute requires the jury to fix the degree of murder, and verdicts in cases of felony can not be helped by intendment. — Robertson v. The State, 42 Ala. 509; Hall v. The State, 40 Ala. 698.

As to the error assigned respecting the change of venue, the constitution guarantees to a person accused of crime several invaluable rights. Among these, equally secured with the rest, is the right to a speedy public trial by an impartial jury of the county or district in which the offense was committed. — Const. Art. 1, § 8.

To insure the. impartial trial, the law has extended the district in which it’ may take place to the nearest county free from exception, and directed the manner in which the accused may avail himself of the advantage.— Revised Code, §§ 4206, 4207. Until recently, this removal of the cause to another county rested in the discretion of the court, the analysis of which was that the right of one person was exercised at the discretion of another. In Ex parte Chase, (43 Ala. 303,) this rule of decision was changed, and the necessity for a change of venue was required to be established or refuted by proof, as other issues.

It argues a want of experience to doubt that local prejudice does not often make shipwreck of justice. When it exists against a person, he is greatly embarrassed to show it. His friends may not be believed, his accusers are not to be trusted, especially if their accusation be false, and all partake of, or are intimidated by, the animosity against him. The commission of heinous crime may well excite the horror of a virtuous community, and arouse indignation against the perpetrators, when known. But the blind prejudice which fastens upon an individual without cause, and rends him without a hearing, is so mean and cruel that the complaint of a prisoner of prejudice against him should be regarded, unless clearly shown to be unfounded. He only gets by the transfer of his case what he is entitled to, and to deny his application, except on good grounds, may be to sacrifice him.

The affidavit of the prisoners alleges that they have been in jail ever since they were first arrested, they have not applied for a continuance, except at the term they were . tried, when it was refused, and two persons named by them, who are influential citizens, with others, have so exerted themselves in speaking of their trial, and in prosecuting them, as to excite a degree of prejudice against them in the public mind highly unfavorable to their fair trial.

These sworn allegations are denied by the testimony only of the persons complained of. They say they have assisted in employing counsel to prosecute the prisoners because they believed the ends of justice required it; that they have said they believed they were guilty, but they had not taken any steps to propagate this belief to the prejudice of the defendants. It is not to be expected that two influential citizens would admit in an affidavit that they had prejudiced a community against persons to be tried for their lives. But from what they do say, may be inferred without violence that, in their opinion, it would not be to the prejudice of the defendants if one of them was hung, and the other put in the penitentiary for life, as the jury decided. Upon the evidence, the removal of the trial to another county ought to have been ordered.

The judgment is reversed, and the cause remanded.