Vaughn v. State

93 So. 256 | Ala. Ct. App. | 1922

The fact that this defendant has been tried three separate and distinct times for the offense charged against him in the indictment, and that the case at bar is the result of the fourth trial, cannot militate against the right of the defendant for a fair and impartial trial, free from hurtful error, as provided by the Constitution and laws of this state.

A salient right in this connection is accorded by statute. Code 1907, § 7851, as amended by Acts 1909, p. 212. This statute provides that any person charged with an indictable offense may have his trial removed to another county, if he cannot have a fair and impartial trial in the county in which the indictment is found; the statute, supra, prescribing the mode of procedure in order for the defendant to avail himself of this right. In the instant case the defendant sought a change of venue. His application was filed to this end, and as the court sustained the state's demurrers to the application, the sole question presented in this connection is the sufficiency of the application as a matter of law.

We are of the opinion that the application for change of venue as amended meets every requirement of the statute. The application was sworn to and sets forth specifically many reasons why the defendant could not have a fair and impartial trial in Blount county, and it appears to be clear that, if the proof had sustained the allegations contained in the application, it would have been error for the court below to deny same. The demurrers should have been overruled, and the defendant put to his proof. The error in sustaining the state's demurrers to the application for change of venue will, of necessity, effect a reversal of the judgment appealed from.

Other questions presented on this appeal, with probably one exception, need not be considered, as in all probability they may not again appear on another trial. No new or novel proposition of law appears to be involved. The one exception referred to is proposition III, insisted upon in appellant's brief, to the effect that the defendant should have been put to trial for the offense of murder in the first degree, instead of murder in the second degree, and that the court should have ordered a special jury, and complied with the other statutory requirements incident to the trial of a capital offense. The defendant is precluded from this insistence for the reason that at a former term of the circuit court of Blount county, on, to wit, August 18, 1919, the following judgment was entered by the court at the instance of this defendant:

"State of Alabama, Blount County.

"Circuit Court. "State of Alabama v. Al Henry Vaughn, alias Al Henry Vaughan. "August 18, 1919. Comes the state of Alabama, by its solicitor, and the defendant, Al Henry Vaughn, alias Al Henry Vaughan, in his own proper person and attended by counsel, and it appearing to the court that, the said defendant having been heretofore convicted of murder in the second degree and acquitted of murder in first degree as charged in the indictment in this case, comes now the defendant and pleads acquittal of murder in the first degree, and the state confesses said plea. It is further ordered by the court that this case be and the same hereby is set for trial on September 1, 1919."

This plea, having been filed in said court and confessed by the state, relieved the defendant forever of the charge of murder in the first degree under this indictment, and there was no necessity of this plea of former acquittal as to murder in the first degree being again filed in the court upon the trial of this cause.

Reversed and remanded.