[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *344 The trial and conviction was for the offense of rape.
The appeals on phases of the facts before us are Patterson v. State,
For convenience, we will follow the order of discussion employed by counsel, of the several questions for decision.
Did the court below err in denying appellant-defendant's petition for removal to the United States District Court, under section 31 of the United States Judicial Code (28 U.S.C.A. § 74) and section 32 of the United States Judicial Code (28 U.S.C.A. § 75)? These statutes are as follows:
"§ 74. (Judicial Code, section 31.) Same; causes against persons denied civil rights. When any civil suit or criminal prosecution is commenced in any State court, for any cause whatsoever, against any person who is denied or can not enforce in the judicial tribunals of the State, or in the part of the State where such suit or prosecution is pending, any right secured to him by any law providing for the equal civil rights of citizens of the United States, or of all persons within the jurisdiction of the United States, or against any officer, civil or military, or other person, for any arrest or imprisonment or other trespasses or wrongs made or committed by virtue of or under color of authority derived from any law providing for equal rights as aforesaid, or for refusing to do any act on the ground that it would be inconsistent with such law, such suit or prosecution may, upon the petition of such defendant, filed in said State court at any time before the trial or final hearing of the cause, stating the facts and verified by oath, be removed for trial into the next district court to be held in the district where it is pending. Upon the filing of such petition *346 all further proceedings in the State courts shall cease, and shall not be resumed except as hereinafter provided. But all bail and other security given in such suit or prosecution shall continue in like force and effect as if the same had proceeded to final judgment and execution in the State court. It shall be the duty of the clerk of the State court to furnish such defendant, petitioning for a removal, copies of said process against him, and of all pleadings, depositions, testimony, and other proceedings in the case. If such copies are filed by said petitioner in the district court on the first day of its session, the cause shall proceed therein in the same manner as if it had been brought there by original process; and if the said clerk refuses or neglects to furnish such copies, the petitioner may thereupon docket the case in the district court, and the said court shall then have jurisdiction therein, and may, upon proof of such refusal or neglect of said clerk, and upon reasonable notice to the plaintiff, require the plaintiff to file a declaration, petition, or complaint in the cause; and, in case of his default, may order a nonsuit, and dismiss the case at the costs of the plaintiff, and such dismissal shall be a bar to any further suit touching the matter in controversy. But if, without such refusal or neglect of said clerk to furnish such copies and proof thereof, the petitioner for removal fails to file copies in the district court, as herein provided, a certificate, under the seal of the district court, stating such failure, shall be given, and upon the production thereof in said State court the cause shall proceed therein as if no petition for removal had been filed. (R.S. § 641; Mar. 3, 1911, c. 231, § 31, 36 Stat. 1096.)"
"§ 75 (Judicial Code, section 32.) Same; petitioner in actual custody of state court. When all the acts necessary for the removal of any suit or prosecution, as provided in section 74 of this title, have been performed, and the defendant petitioning for such removal is in actual custody on process issued by said State court, it shall be the duty of the clerk of said district court to issue a writ of habeas corpus cum causa, and of the marshal, by virtue of said writ, to take the body of the defendant into his custody, to be dealt with in said district court according to law and the orders of said court, or, in vacation, of any judge thereof; and the marshall shall file with or deliver to the clerk of said State court a duplicate copy of said writ. (R.S. § 642; Mar. 3, 1911, c. 231, § 32, 36 Stat. 1097.)"
The provisions for a change of venue in criminal causes, contained in section 5581 of the Code of Alabama of 1923, are as follows: "5581. Removal to nearest county, and but once. — The trial must be removed to the nearest county free from exception, and can be removed but once."
The decisions are that on an application for a change of venue, and on granting the motion for removal, the trial court must decide what is the nearest county free from objection. Ex parte Benj. F. Hodges,
In Ex parte State of Alabama,
In Ex parte J. Madison Wells et al., 29 Fed.Cas. 633, No. 17,386, 3 Woods, 128, it is said that the state court surely is not forced to shut its eyes and yield to every application that comes to it (for removal). Though removal is a matter of right and not of favor, yet the court must have the right *347
to see whether the application to remove comes within the meaning of the law. This latter reference applies to the right and power of the state court to examine and ascertain the compliance with federal statute. Virginia v. Rives,
In Virginia v. Paul,
In the case of Commonwealth v. Millen,
"There was no error in denying the defendants' petitions, and in ordering the trial to proceed. It is only when state legislation can be shown to exist which violates the constitutional guaranty of the equal protection of the laws and interferes with a party's right of defence that he can have his cause removed to the federal court under section 31 of the Judicial Code. Virginia v. Rives,
"Furthermore, the formal and orderly process required by section 32 of the Judicial Code, where the state court refuses to recognize the defendant's right to remove the cause, was not complied with. The jurisdiction of the state court is transferred to the federal court only in case the suit is a removable one and the proceedings to remove it are regular enough to be effective. That the proceedings to remove the cause are regular is not sufficient to transfer the jurisdiction from the state court to the federal court."
It follows that the trial court did not err in examining the petition for removal to determine whether or not there was sufficient cause to remove the case to the federal court.
What then of the correctness of the trial court's judgment in determining that the petition filed did not present such a case as came within the purview of section 31 of the United States Judicial Code? This depends on whether or not the appellant was denied an equal right by virtue of section 5581 of the Code of Alabama, providing that there shall be only one change of venue. It is hardly necessary to observe that the statute applies to all persons alike, without regard to race, color, or previous condition of servitude.
The general rule is stated that the right of a change of venue in criminal cases is provided by statute, and the extent and manner of its exercise is of legislative declaration. Stamp v. Commonwealth,
Adverting to the rule in this jurisdiction, section 6 of the Constitution states that by general law, the Legislature may provide for a change of venue at the instance of the defendant in all prosecutions by indictment, and the application for such change of venue may be heard and determined without the personal presence of the defendant applying therefor; provided, the defendant is imprisoned in jail or in some legal place of confinement. Thus the Constitution does not expressly guarantee to a defendant the right to a change of venue, but leaves the question to the discretion of the Legislature.
The United States Supreme Court has determined that in order for a petitioner to come within the provisions of section 31 of the Judicial Code, he must be deprived of an equal civil right by virtue of the constitutional or statutory provisions administered or applied.
In Virginia v. Rives,
"The petition of the two colored men for the removal of their case into the Federal court does not appear to have made any case for removal, if we are correct in our reading of the act of Congress. It did not assert, nor is it claimed now, that the Constitution or laws of Virginia denied to them any civil right, or stood in the way of their enforcing the equal protection of the laws. The law made no discrimination against *348 them because of their color, nor any discrimination at all. The complaint is that there were no colored men in the jury that indicted them, nor in the petit jury summoned to try them. The petition expressly admitted that by the laws of the State all male citizens twenty-one years of age and not over sixty, who are entitled to vote and hold office under the Constitution and laws thereof, are made liable to serve as jurors. And it affirms (what is undoubtedly true) that this law allows the right, as well as requires the duty, of the race to which the petitioners belong to serve as jurors. It does not exclude colored citizens.
"Now, conceding as we do, and as we endeavored to maintain in the case of Strauder v. West Virginia [
"Nor did the refusal of the court and of the counsel for the prosecution to allow a modification of the venire, by which one-third of the jury, or a portion of it, should be composed of persons of the petitioners' own race, amount to any denial of a right secured to them by any law providing for the equal civil rights of citizens of the United States. The privilege for which they moved, and which they also asked from the prosecution, was not a right given or secured to them, or to any person, by the law of the State, or by any act of Congress, or by the Fourteenth Amendment of the Constitution. It is a right to which every colored man is entitled, that, in the selection of jurors to pass upon his life, liberty, or property, there shall be no exclusion of his race, and no discrimination against them because of their color. But this is a different thing from the right which it is asserted was denied to the petitioners by the State court, viz. a right to *349 have the jury composed in part of colored men. A mixed jury in a particular case is not essential to the equal protection of the laws, and the right to it is not given by any law of Virginia, or by any Federal statute. It is not, therefore, guaranteed by the Fourteenth Amendment, or within the purview of section 641."
In Gibson v. Mississippi,
We have indicated that in the case of Commonwealth v. Millen,
The case of Kentucky v. Powers,
From all the cases, it will be noted, that the Fourteenth Amendment to the Constitution of the United States is broader than the provisions of section 641, Revised Statutes. Ex parte Virginia (Virginia v. Rives),
The statute of Alabama for change of venue, of which appellant complains, did not operate to deprive him of a civil right given to members of any class, and was not prejudicial to him by reason of his race, color, or previous condition of servitude. Petitioner does not point to any constitutional or statutory provision which in any way deprives him of a civil right given to others, and hence we are of opinion that he was not entitled to have his cause removed to the federal court.
We hold that section 5581 of the Code Ala. 1923 does not offend any provision of the State or Federal Constitutions; that section 31 of the Judicial Code of the United States (28 U.S.C.A. § 74), providing for removal of causes to the federal court in the district where the civil rights are denied, *350 did not authorize removal of defendant's cause under the petition and proceedings had in the circuit court of Morgan county, Ala., where defendant-appellee was tried and convicted, and from which judgment the present appeal is prosecuted to this court.
Appellant next contends that the trial court erred in sustaining objections to the following questions:
"I will ask you to state to the Jury whether or not during your stay in Chattanooga you were in company with Victoria Price and Ruby Bates substantially the entire time you were there? * * *
"Now, I want to ask you if you know of your own knowledge whether Victoria Price, while in Chattanooga, had sexual intercourse with a man? * * *
"I will ask you whether or not Orville Gilley, after you met him in Chattanooga, remained substantially all the time with you and Victoria Price and Ruby Bates."
This contention was answered by the former appeal of Morris v. State,
"Objections of the state to questions seeking to show adulterous relations on the part of the prosecutrix with certain named individuals the night before the commission of the alleged crime, or even the night before leaving Huntsville, were properly sustained. All of this bore no relevancy to any issue in the case under the rule firmly established in this jurisdiction. Story v. State,
"Some other questions to prosecutrix on cross-examination were disallowed. They related to her movements in Chattanooga, whom she saw, to whom she spoke, and where she spent the night, or closely related matters, all of which, it does not appear, would be relevant to the charge of rape here considered. Though not to be too narrowly restricted (Mitchell v. Birmingham News Co.,
Appellant contends that inasmuch as there was evidence of semen found in the vaginal canal of Mrs. Price, defendant should have been allowed to show that she had had intercourse with other persons than defendant, prior to the date of the alleged attack of Mrs. Price. The facts in the Norris Case were practically the same as the facts in the case now for consideration. The State did not introduce evidence tending to show the presence of semen in the vagina of the prosecutrix. Defendant offered Dr. Bridges who testified to such fact of semen in Mrs. Price's vagina, and upon this fact appellant Morris contended there was error not to allow the questions. This court will recognize a distinction in cases where the presence of semen is shown by the State, and where such fact is brought out by the defendant. This was the distinction pointed out by Mr. Justice Dargan, in Nugent v. State,
This is the rule also in other jurisdictions. State v. Menard,
In the instant case, Dr. Bridges, who had testified on a former trial for the defendant, did not appear at this trial. His testimony was available in the form of stenographer's notes. The defendant did not ask for a continuance on account of the absence of Dr. Bridges. The rule as to whether the *351
State will be called upon to allow the admission of testimony given on a former trial by an absent witness for a defendant is addressed to the sound discretion of the court. DeArman v. State,
"The defendant here offered in evidence the former testimony of the witness, Dr. Bridges, who was called and examined as a witness for the defendant on the former trial of the defendant, Haywood Patterson, before Judge Callahan, at Decatur, Alabama.
"Mr. Knight: Mr. Leibowitz, if you are not reading the whole thing, please indicate with a pencil what you have left out.
"The Court: Gentlemen, I am going to require the defendant, if they want that record in here, to offer the whole record and read such parts as you want.
"Mr. Knight: That is what we want.
"Mr. Leibowitz: What is the court's instructions?
"The Court: I am holding, when you offer that record, you are offering the testimony of Doctor Bridges on a former trial, and you can read from that record such parts as you want.
"Mr. Leibowitz: If Your Honor please, we are offering this testimony to contradict Victoria Price.
"The Court: I understand.
"Mr. Leibowitz: That is all we are offering it for.
"The Court: I am requiring you to offer the whole of his testimony, and you can read such parts as you wish.
"Mr. Leibowitz: I am not offering the whole of the testimony in evidence. I am offering the testimony, as we see it, that contradicts the claims of Victoria Price, and if the State wants to offer, subject to objection, any other part, they can offer it.
"The Court: I can't do that.
"Mr. Leibowitz: Except.
"The Court: I thought I had it plain at the start it was your testimony, and you were offering it, and you could read such parts as you wanted to.
"Thereupon Mr. Leibowitz read from the testimony of Doctor Bridges given on the former trial of the case: * * *."
The defendant read portions of the testimony showing the presence of semen, and he State then asked: "I will ask you this question: * * * this was a question asked by me to Doctor Bridges, * * * 'from your examination of Victoria Price's vaginal canal, in your opinion, was the intercourse recent? The answer was, 'I would say that it was recent, but I wouldn't put the hour or minute on it. I couldn't do that.' "
It is thus apparent that the question or fact of the presence of semen in the vagina of Mrs. Price was injected into the case by the defendant and not by the state. The rule laid down in Nugent v. State,
We find no error of the trial court in rulings excluding evidence of alleged bias on the part of the prosecutrix as being in jail, and cooking there, at the same time with Gilley, Carter, et al., and traveling with them on trains at the time of the alleged rape, and theretofore to Chattanooga.
The cross-examination of a witness rests largely in the discretion of a trial court. Peterson v. State,
The rules of law as to aiding, abetting, and co-operating to commit a crime are well understood and need not be repeated. *352
National Park Bank v. Louisville N. R. R. Co.,
We have examined the suggestions of error because of remarks of the court and find no reversible error. It is the rule in this jurisdiction that the granting or refusal of motions to grant additional time usually rests on the sound discretion of the trial court; and when there is no abuse of that discretion, no error to reversal intervenes.
Appellant moved for a mistrial because of the reply of the court to appellant's counsel asking for delay. The counsel said: "We renew our application now to prepare a showing for Doctor Bridges."
The court declined, saying: "I am not going to be tampered with in that fashion."
The court instructed the jury that, "Gentlemen of the jury, that has got nothing to do with this case. You, I assume, have got sense enough to pass on this case from the evidence and not what transpires between counsel on one side and the court on the other. These motions that are made, they have got a right to make them, and the court passes on them, and it doesn't affect — it ought not to affect the trial of this case, — got nothing to do with it. Pay no attention to it.
"If that word is offensive to you, I will withdraw it."
If there was error it was thus eradicated by this action of the trial court in its instruction to the jury, as above set out.
The cases cited by appellant are different in prejudicial effect. In Griffin v. State,
In the instant case, the remark of the court was well understood, as the word was employed and used in common parlance. It was in effect that counsel may not unnecessarily consume the time of the court with matters that had theretofore been the subject of adverse rulings. That is to say, the court meant, by the expression employed, and to which exception was taken, that counsel would not be permitted to further delay the court and the trial on a question theretofore concluded by rulings invoked by counsel for the defendant.
When the record is examined, as has been done, we find no reversible error.
Affirmed.
ANDERSON, C. J., and BROWN and KNIGHT, JJ., concur.