Appellant, Jeremiah Reeves, Jr., age seventeen years, was indicted for rape by a grand jury of Montgomery County. Upon trial, the jury found him guilty and imposed the death penalty. Judgment and sentence were in accord with the verdict. After his motion for a new trial was overruled, he brought this appeal.
• There is no reason to make a detailed statement of the evidence. The following summary will suffice.
The prosecutrix, a white woman, testified that about 12:15 p. m. on July 28, 1952, a Negro male entered her home and forcibly ravished her, beat her about the head, took some money and departed. A neighbor testified that the prosecutrix came to her house about 12:40 p. m. in a state of shock and hysteria; that she was badly bruised and bleeding and asked her to report the attack to the police. The testimony of two doctors who treated her that day tended to support her claim that she had been ravished. Reeves was arrested Monday November 10, 1952 at 2:10 p. m. On Wednesday morning prosecutrix identified him at Montgomery police headquarters. .
■ On the trial a witness for the State testified that he saw defendant running along a street about two blocks from where prosecutrix lived; that he picked him up in his automobile a short time before 1 o’clock p. m. and carried him six or seven blocks. The defendant, offered some testimony that he was insane,.some as to his good character, denied his guilt and claimed certain statements he had made were the result of coercion and promises. He sought to prove an alibi, that he was present where a group of people were playing dominoes, and this claim was supported by the testimony of one witness. Certain part? o.f the evidence will be more fully developed in the discus-, sion of the matters raised in appellant’s, brief. -t
• Counsel for defendant argue many points in brief and we consider them as they are raised, numbering them for convenience.
1. Defendant was denied due process because he was arraigned on the day following the return of three indictments against him by the grand jury and required to plead to same when no copies had been served on him.
The indictment was returned on November 14, 1952 and defendant was arraigned November 15th. A copy of the indictment and venire was served on him on November 17th. Our statute requires that the venire and a copy of the indictment be served on the defendant in a capital case at least one entire day before the day set for trial, and that is all the notice to which he is entitled. Title 30, section 63, Code. In the instant case the trial was set for November 26th. “The law neither requires that the defendant in a criminal case shall have previous notice of the indictment nor a copy of it previous to his arraignment.” Dix v. State,
2. Local Act No. 118, 1939 Local Acts of Alabama, p. 66, establishing the jury commission of Montgomery County violates *71 section 105 of the Constitution, and the jury commission is without legal authority.
The local act referred to provides that the jury commission of Montgomery County shall he composed of the circuit judges, the judge of probate, the sheriff and the clerk of the circuit court. This act is not violative of section 105 of the Constitution on authority of State ex rel. Brandon v. Prince,
3. That Negroes are systematically excluded from jury service by the-jury commission.
The defendant filed a motion to quash both the indictment by the grand jury and the petit jury panel on the ground that Negroes have been systematically excluded from the jury rolls. Circuit Judge Eugene W. Carter recused himself on the ground that he had become a witness in said cause and Mr. James J. Carter was appointed special judge to try the case.
Circuit Judge Eugene W. Carter and Circuit Qerk John R. Matthews were called as witnesses for the defendant to testify in support of his motion to quash; Circuit Judge Walter B. Jones, James E. Pierce, a Negro school teacher, and D. Caffey, a Negro real estate dealer, were called as witnesses for the State. The testimony of the jury commissioners showed that there was no discrimination as to race or creed and that both races were represented on the panel to try the instant case. The Negro witnesses testified that they had been, previously called for jury duty, one having served at least six times, and that they had been requested to furnish names of Negro citizens to the jury commission. Title 30, section 20, Code, requires the names of jurors to be printed on plain white cards all of the same size and texture and printed thereon the name, occupation, place of residence and place of business of the juror. Neither the card nor the actual jury list shows the race of the juror. Defendant showed none of the circumstances to be present which were the basis' of the holding in the case of Avery v. Georgia,
4 — 10. These propositions are concerned with the contentions that Special Judge James J. Carter was without authority to act, and that he did not receive the consent of the defendant as required by section 160 of the Constitution and section 124 of Title 13, Code.
The following is quoted from the record and comes immediately after the recording of the announcement of Judge Eugene W. Carter that he would recuse himself:
“The defendant’s attorney and the solicitor were called to the bar in the presence of the defendant, and they stated that the State of Alabama and the defendant had agreed that the Hon. James J. Carter be appointed as Special Judge in the trial of said' cause, in accordance with section 124, Title 13 of the 1940 Code of Alabama. The said James J. Carter was called to the bench and was informed of the agreement that he serve as Special Judge in the case, and asked if he would serve. He stated in addition to agreement of counsel he would prefer to have an appointment by the Governor of Alabama to make it doubly sure that no objection be made to his appointment as Special Judge. The defendant’s attorney, in the presence of the defendant, stated that at no time would he make any objection to the appointment of James J. Carter as Special Judge.
“Hon. Eugene W. Carter, presiding, thereupon recused himself from sitting at said trial; and the case was then continued for trial until November 28th, 1952.”
The defendant offered no evidence at any time to show that the above statement in the record is incorrect.
The Governor of Alabama did appoint James J. Carter as Special Judge to hear the case, and. defendant’s attorney agreed and stated he had no objection thereto;
*72
The- statutory grounds of disqualification of a judge, section 6, Title 13, Code, are not exclusive so as to eliminate grounds for disqualification under the common law. Ex parte Benson,
11. Defendant was denied due process of law and denied his constitutional rights because the assistance of a private stenographer was denied his counsel.
On the morning of November 26th, prior to Judge Eugene W. Carter recusing himself, he had ruled that only officials of the court, witnesses and relations of the accused' could remain in the court room.
Defendant’s counsel stated that Mr. Ira Fred Watson, a private stenographer, was supposed to be present and he wanted Mr. Watson to assist him in the trial. The solicitor objected on the ground that Mr. Watson was not a court official and the court denied counsel’s request. However on November 28th, prior to the noon recess and prior to the taking of the testimony of the State’s first witness at 2 o’clock p. m., Special Judge James J. Carter presiding, the following took place:
“The Court: What about your motion to have a stenographer assist you ? .You may have one if you like.
“Mr. McGee: • I will not press that. T cannot locate him now.”
12-13. Inculpatory admissions or admissions in the nature of confessions or a con-» fessiori of actual guilt by defendant were admitted into evidence although defendant offered to show that a previous confession had been obtained from him based on the promise that the only way to keep out of the electric'chair was to confess this and another criminal assault.
Certain statements made by defendant to the prosecutrix and a- psychiatrist were ad■mitted in evidence. The defendant objected and offered to show that defendant had confessed that he had committed this and other offenses after he had been taken into-the room at Kilby prison where the electric chair 'is located and there told by the deputy warden'of the prison that the only way to keep out of the electric chair was to say that he committed the offense. No such alleged confession was ever offered or introduced in evidence. The court permitted the defendant to testify to the above mentioned conversation with the deputy warden but would not allow the particulars of the alleged confession to be given in evidence because no confession made at Kilby prison had been introduced.
The defendant contends that the rule in Huntley v. State,
“Where a confession has been obtained, or inducement held out, under circumstances which would render a confession inadmissible, a confession subsequently made is not admissible unless, from proper warning of the consequences, or from other circumstances, there is reason to presume the hope or fear which influenced the first confession is dispelled, and in absence of any such circumstances influence of the motives proved to have been offered will be presumed to continue, and to have produced the confession unless the contrary is shown by clear evidence.”
We come now to the consideration of defendant’s statements which were admitted in evidence.
The prosecutrix testified that after the assault she next saw defendant at police headquarters in Montgomery on Wednesday, November 12th, that she identified him and a few minutes later talked with him in the presence of two other women, a Lieut. Miller and other policemen in the room. A proper predicate was laid for the introduction of the conversation and defendant objected. by written motion. The jury was excluded and defendant was permitted to examine prosecutrix as to what happened in her presence. After hearing the evidence, the court ruled the statement was voluntary; the jury was recalled'and the following took place:
*73 “Q. I am going to ask you the question over again. The question I asked was this. Did he make any statement to you at police headquarters on the 12th, Wednesday, the 12th of November ? Did you have a conversation with him? A. Yes, sir; I did.
“Q. I would like you to tell the jury what conversation you had with him, who asked the first question, what the reply was, as best you remember. A.
I asked the first question.
“Q. What was the question, what did you ask him? A. ‘Why did you do it?’ And to that he just shook his head, and later he said, T don’t know.’
“Q. Did he deny he raped you? A. No, he did not.
“Q. Did he recognize you? A. Yes.
“Mr. McGee: I object
“By the solicitor:
“Q. Let me put it this way. Did he say anything that would show he recognized you? A. Yes, he did.
“Q. What did he say? A. He was asked which house was I in — ‘where do you remember her from ?’ And he told them, ‘Cleveland Avenue, the first one.’
“Q. ‘Cleveland Avenue, the first one’? A. Yes.
“Q. He said that to you at that time? A. He was speaking to someone else, but I was in the room.
“Q. Did you have any other conversation with him yourself ? A. Yes. I asked him by which door he entered the house, and he said he entered by the back door.
“Q. I want you to look at this defendant. Now, do you positively identify him as the man who raped you?
A. Yes.”
While these statements of defendant are not direct confessions of guilt, we think they are inculpatory admissions in the nature of a confession — that is, directly relating to the fact or circumstances of the crime and connecting the defendant therewith, and as such are subject to the same rules of admissibility as direct confessions, and are therefore prima facie involuntary and inadmissible. McGehee v. State,
As we have already observed, the court went into the matter- of the voluntariness of these statements out of the presence of the jury and held them to be voluntary. This Court said in the case of Dennison v. State,
*74 ..“Now, as to any statement, or alleged .confession or admission which may have been made,, the weight of such a .statement or admission is for you and you, alone, and you are to determine the .weight, and credibility of the evidence here in the light of the circumstances that were existing at the time such .statement was given.”
The defendant was questioned from 2:10 p. m, to 7:30 p. m. Monday, most of the day Tuesday and part of the forenoon on Wednesday. He did not claim any physical violence or threat of it to procure any statement from him.
We come now to the question of the psychological coercion. Under defendant’s own description of his interrogation it was not shown that he was deprived of refreshment, rest or relief or that it was so prolonged and unremitting as to accomplish extortion of an involuntary confession. There was no evidence or claim of the employment of the “relay technique”.
It is not'disputed that defendant was held incommunicado until the afternooon of November 12th, but there is no claim made that he was
illegally
detained. The Supreme Court of the United States has held that the requirements of the Fourteenth Amendment do not “impose rules of evidence on state courts which bind them to exclude a confession because, without coercion, it was obtained while a prisoner was uncounseled and illegally detained. Stroble v. California,
At this point we should recall that although defendant testified that he had been told if he would admit having raped the prosecutrix that would keep him out of the electric chair, there was no evidence of a confession on direct testimony offered by the State. That came only on rebuttal from Dr. Bazar after the defendant had been questioned about, his conversation with Dr. Bazar and tjie proper predicate had been laíá-as to the voluntariness of the statement.' The inculpatory admissions made tó * the prosecutrix did come on direct presentation of the State’s evidence. In considering all the evidence, especially the fact that the solicitor told the defendant on the afternoon of November 11th (Tuesday) that he could make him no promises and the law woyld have, to take its course, and that there is no claim of coercion or promises made to defendant when ' he had the conversation with prosecutrix Wednesday at police headquarters and the finding of the court, after taking evidence, that the statements were voluntary, we cannot say that the admission of these statements was reversible error. Moreover, the admissions to the prosecutrix and the confession to Dr. Bazar did not- form the basis of a conviction. The State had established the identity of this defendant as the perpetrator Of the crime by very convincing proof “and the matter of confession was but cumulative and approached what might properly be termed supererogation”, Johnson v. State,
14. After the testimony closed defendant .moved for a mistrial on the ground that counsel had just learned that one juror was chief of the Montgomery Reserve Police Force, organized for the purpose of tracking' down rapists and burglars.
This motion was denied by the court on the ground that each juror had been qualified separately and individually and the juror had not been disqualified. Counsel for defendant then asked to be allowed to question the juror himself. This request was properly refused by the court under the rule of Vernon v. State,
15. The expression of an opinion by the trial judge as to a fact in issue was reversible error.
During the trial defendant’s counsel was referring to the conversation of the prosecutrix with the defendant and the court stated that it had already held that statement to be admissible -as being voluntary. Counsel for defendant moved for a mistrial which was overruled and the court made this statement to the jury:
“I want to explain the ruling of the court just given. The credibility of a statement given by a witness is simply for the jury; the court has no opinion at all, and expresses none on the record.”
It is clear that the remark of the trial judge that he had previously held the tended to prejudice the defendant’s case Restatements to be “voluntary” did not irir juriously affect the substantial rights of the defendant or make any intimation which fore the jury. The cases of Pate v. State,
16. The evidence is insufficient to support a conviction of rape.
The evidence was not only sufficient to take the case to the jury on the charge of rape, but was amply sufficient to support the verdict of the jury.
On the whole evidence with respect to the inculpatory admissions to the prosecutrix and the confession to the doctor, there is nothing to show that the trial court’s action in admitting them was manifestly wrong or 'that defendant’s rights under the Federal Constitution were infringed. Phillips v. State,
In accordance with our duty in cases of this character, we have examined the- record for any reversible error, whether pressed upon our attention or not. We have dealt herein with all questions calling for treatment. We find no reversible error in the record and the cause is due to be and is affirmed. ,
Affirmed.