109 So. 109 | Ala. | 1926
Defendant, a negro, was convicted of robbery from the person of Richard Warner, a white man. His motion for a change of venue was denied, and he now insists that in this ruling the trial court committed reversible error. The offense with which defendant stood charged was committed in May, 1924. Defendant was indicted May 26th, and was called for trial two days later, but the case was then postponed to June 14th, when the motion for a change of venue was made and overruled and the case continued until the call of the criminal docket in October. On October 23, 1924, defendant was brought to trial. He then renewed his motion for a change of venue, putting in evidence affidavits taken during the first half of June and newspaper clippings dated before and after the crime charged to him. Such of them as antedated the case in hand gave, under great headlines, the details of other crimes of a similar character; some of them describing the trial and conviction of the criminals. As shedding light upon the situation presented by these newspaper accounts, we quote from defendant's brief as follows:
"The crime with which appellant stands charged was one of the very last of a series of murders and murderous assaults, some 25 to 30 in number, and covering a period of 18 months, or thereabouts, and popularly referred to in the Birmingham district as the 'axe murders' "
And in this connection, it should be stated that the victim of the robbery charged in this indictment was, as the evidence without conflict went to show, assaulted and grievously wounded with an axe as he passed the mouth of an alley on his way home between 10 and 11 o'clock, p. m., his pockets turned, and money and a watch taken from his person, as charged in the indictment. These newspaper clippings, transmitted to this court in the original print, have been examined, but may not be taken into consideration in determining the question presented by the motion, for the reason that they have not been incorporated in the bill of exceptions. Pruitt v. McWhorter,
However, we think the substance of the situation, minus the headlines, may be fairly inferred from the affidavits put in evidence for and against the motion. It may be conceded that the community where these outrages had occurred was in a certain state of mind concerning the situation generally. They knew, we may assume — because the evidence shows that a good many people knew — that within a few hours of the crime defendant had confessed. This confession was drawn from defendant by such means that the court very properly refused to hear it at the trial, except in so far as it had the corroboration of extraneous facts; but it figured no doubt in the public mind as a confession of guilt. And some of the affidavits submitted by defendant were to the effect that affiants had heard some people express the opinion that a negro accused of an axe murder did not deserve a trial in the law courts, and a number of affiants gave their own opinion that defendant could not get a fair trial. But the opinions of witnesses, unsupported by facts, count for little, and, it will be noted, these affidavits were exhibited to the court in June. Defendant was tried in the last week of the following October. At that time the affidavits taken in June were again placed in evidence and in addition new affidavits by defendant's attorney and W. W. Nelson, who described himself as a "newspaper special feature writer, working for New York and Chicago publications," were offered, and went to show the opinion of affiants that the public mind had been permeated by the fixed opinion as to defendant's guilt to such extent that it would be impossible for him to get a fair and impartial trial at that time. But this again was mere opinion. On the other hand, affidavits in considerable number were offered against the motion, going to prove that affiants had read the newspaper accounts, that they were informed as to public opinion, had heard no threats, nor any other indications of an inflamed state of the public mind, and *45
expressed opinions that there was nothing to prevent a fair and impartial trial by jury. Nor is there any evidence of public anger against this defendant such as will be found in the cases cited, in which this court held that a change of venue should have been granted, no storming of the jail, no mob seeking to execute vengeance on defendant, no necessity for the attendance of the military forces to protect him, as was the fact in one part or another in most of those cases. Posey v. State,
All our cases hold that the burden is on the accused to show to the reasonable satisfaction of the court that an impartial trial and an unbiased verdict cannot be reasonably expected in the circumstances obtaining at the time when and in the place where the case is brought to trial. Nor would we abate in the slightest degree that substantial care with which constitutional and statute law and judicial opinion have sought to guard the right of trial by an impartial jury; but in the case shown by the record, considering only the correctness of the ruling made at the time of the trial, since defendant could not have been prejudiced by the ruling made 5 months before (Hawes v. State, supra), we cannot fail to observe that there was a quiet and orderly trial by a jury selected with due care and without unusual difficulty and in the absence of any evidence of public excitement, anger, or prejudice against defendant. Hence we find no error in the overruling of defendant's motion for a change of venue. The decisions of this court in previous cases — to some of which we have referred — abundantly sustain this conclusion. McClain v. State,
Motions for continuance are addressed, within limits, to the discretion of the trial court. In this case the grounds for the motion are found in the same facts and circumstances discussed in our consideration of the application for a change of venue. In the case of Seay v. State,
Nor do we find error in the method adopted in the drawing of the venire for this and other cases of like character. Defendant refers to sections 6686 et seq. of the Code of 1923, which govern the drawing of juries in Jefferson county. As to that, if we remember the argument made at the bar, emphasis was laid upon the proposition that the presiding judge of the circuit court of Jefferson drew the venire instead of one of the judges sitting for the trial of criminal causes. But the statute provides that the presiding judge may draw and impanel all juries. Section 6691. And "all the judges shall have equal power, authority and jurisdiction." Section 6688. We see no possibility of error in the conduct of this case in respect of the drawing of the venire. Any of the judges might have drawn it and the presumption must be indulged that the judges were in accord as to that, though no minute entry was made in virtue of which the presiding judge assumed to draw the jury or assigned that duty to some other. Brown v. State,
We have heretofore referred to the fact that the court excluded evidence of an alleged confession made by defendant. The court, however, followed the rule that, when the confession of the accused is corroborated by extraneous facts, it is competent for the state to prove to the jury his statement and the corroboratory extraneous facts, even though such confession or statement was improperly procured. Murphy v. State,
From defendant's person were taken some currency of the United States, stained and damp with blood, and a watch — articles afterwards identified by the prosecuting witness Warner as articles which he had on his person when he lost consciousness at the mouth of the alley. These articles were alleged in the indictment to be the property of Warner and to have been taken from his person, against his will, by violence, etc., and, of course, the evidence as to them was properly admitted. But defendant, in the course of an examination prosecuted continuously from the time when he was taken to police headquarters until past midday, some 8 or 10 hours, without care for his wounds and without food or water — though this was in dispute — told the officers conducting the examination where the assault and robbery had been committed and mentioned some articles which he had taken and had thrown aside, and, when they took defendant to the place next morning (the examination still in progress) they found sundry articles, identified by Warner as his property, taken from him at the time of the assault, viz. a letter to Warner from his young daughter in Talladega, a memorandum book, some blank contracts made for use by his business firm, business cards, ear bobs, and other small articles of no particular value, and saw upon the ground of the unpaved alley signs as if a body had been dragged from out the alley to the paved sidewalk. This was the evidence of witnesses for the state and was properly admitted, even though the indictment had nothing to allege concerning these other articles, and notwithstanding the police had obtained the information which led them to the scene and the finding of these other articles by improper means. Pressley v. State,
On direct examination hypothetical questions to an expert must conform to tendencies of the evidence; but on cross-examination, where the purpose is to test the value and accuracy of opinions expressed, the above limitation does not apply and the range of examination is left largely to the discretion of the trial court. Parrish v. State,
The bill of exceptions shows that in the course of his argument, the solicitor, prosecuting for the state, used the expression "the white man's blood." The context does not appear. And, again, he said, "Stop the hand of the axe wielder." In both instances the court very carefully stated to the jury that the remark, as applied to the facts of the case in hand, was not improper, cautioned them that no race feeling should be allowed to affect their deliberation, overruled defendant's objection and exception, and also his motion that the case be withdrawn from the jury and a mistrial entered. Defendant was a negro; his victim was a white man, as we have said.
We do not think the solicitor's remarks should suffice to bring this case within the rule illustrated in Moulton v. State,
Charge B, requested by defendant, was substantially the same as charge E given at his request. There was, therefore, no error in its refusal.
So refused charge H was covered by given charge K.
Charges like 1, 2, and 47, refused to defendant, have been frequently condemned in this court as mere argument. Davis v. State,
Charge 50 was hardly more than a reasonable doubt charge and was covered by the court's oral charge and by special charges given on defendant's request.
Charge 49 was covered by given charge 5.
Charge 45 was properly refused as abstract. Even on a far-fetched interpretation of the evidence in defendant's favor it was bad. Thomas v. State,
Charges 20 and 41 were the same in every effect as given charge 13.
On the facts shown by this record charge 9 was refused without error. Pitman v. State,
Charge 34 was substantially covered by given charge 19.
We have stated our consideration of the points made in defendant's brief. Several hundred exceptions were reserved during the progress of the trial, and they have been considered, but to treat each separately would far transcend the time and space at our command. We find no reversible error, and the judgment of conviction must be affirmed.
Affirmed.
All the Justices concur.