Powell v. State

• Decision Date: 24 March 1932
• Docket Number: 8 Div. 322.
• Citation: 224 Ala. 540,141 So. 201
• Parties: POWELL ET AL. v. STATE.
• Court: Alabama Supreme Court

141 So. 201

224 Ala. 540

POWELL ET AL. v. STATE.

8 Div. 322.

Supreme Court of Alabama

March 24, 1932

Rehearing Denied April 9, 1932.

Appeal from Circuit Court, Jackson County; A. E. Hawkins, Judge.

Ozie Powell, Willie Roberson, Andy Wright, Olen Montgomery, and Eugene Williams were convicted of rape, and they appeal.

Affirmed as to Powell, Roberson, Wright, and Montgomery; and reversed and remanded, with directions, as to Williams.

ANDERSON C.J., dissenting.

George W. Chamlee, Sr., and George W. Chamlee, Jr., both of Chattanooga, Tenn., and Joseph R. Brodsky, Irving Schwab Allan Taub, Elias M. Schwartzbart, Joseph Tauber, and Sidney Schreiber, all of New York City, for appellant.

Thos E. Knight, Jr., Atty. Gen., and Thos. Seay Lawson, Asst. Atty. Gen., for the State.

KNIGHT J.

Ozie Powell, William Roberson, Andy Wright, Olen Montgomery, and Eugene Williams were jointly indicted, along with three others, by a grand jury of Jackson county, charging them, and each of them, with the offense of rape. The victim of their alleged offense was Victoria Price, a young white woman who lived at or near the city of Huntsville, in this state, and who, at the time of the commission of the alleged offense, was riding upon a freight train between Stevenson and Paint Rock, in Jackson county.

The trial of the appellants was had in the circuit court of Jackson county, on April 8, 1931, resulting in the conviction of the defendants of the offense of rape, as charged in the indictment, and the imposition of the death penalty upon each. And on April 9, 1931, each of the defendants was sentenced to death in accordance with the verdict of the jury. These sentences were, upon motion of the defendants, suspended pending this appeal.

With respect to the appellant Eugene Williams, in addition to the matters presented for review and which are brought forward by each of the defendants, a further question is raised by this appellant growing out of, and based upon, the contention made by him that he was, at the time of his trial, under sixteen years of age, and that the circuit court of Jackson county therefore had no jurisdiction over him, or over his case. We will first consider the record with reference to any errors that may there appear, and which affect all the defendants, leaving the question that is presented upon age of appellant Williams to be later discussed and considered in this opinion.

The state's theory of the case is that the woman, Victoria Price, and her companion, Ruby Bates, had been on a trip to Chattanooga for the purpose of seeking employment; that on March 25, 1931, while these two women were returning to Huntsville, riding in a gondola car, attached to a freight train, and between Stevenson and Paint Rock, the defendants and other associates, all negroes climbed over and into this gondola car, engaged in a fight with seven white boys, who were riding in this gondola car with the two white women, and finally, after beating up and overpowering these white boys, either threw them bodily out of the car, or forced them to leave it; that the defendants then proceeded to rape both Victoria Price and Ruby Bates. Some five or six of the negroes, by force and threats, had intercourse with the said Victoria Price, while others, at the same time, ravished Ruby Bates. The testimony introduced by the state tended to support, and, if believed by the jury, did support, the above facts, and the state's testimony further tended to show, and, if believed by the jury, did show, that after the defendants had gotten into the gondola car, and after they had expelled the white boys therefrom, one of the defendants seized the said Victoria Price, and proceeded to rape her, and, while he was doing this, one of the defendants, with knife open in hand and drawn, stood over the prostrate form of Victoria Price threatening to kill her if she did not submit to the outrage then being perpetrated upon her, while some one of them held her by the legs. That six of the assailants on that occasion, by force, had intercourse with Victoria Price, and a number of them with Ruby Bates; and that all of the defendants took part in the raping of the two girls. The testimony for the state further tended to show that, while the girls were being ravished, the others of the defendants kept the white boys out of the car, and, to quote the language of Victoria Price, while on the stand, "telling them [the white boys] that they would kill them, that it was their car and we were their women from then on." The evidence for the state tended to show, and, if believed by the jury, did show, that each of the defendants either himself ravished the girl Victoria Price, or that each was present aiding and abetting those who did actually, and forcibly, have intercourse with her. If the two girls, Victoria Price and Ruby Bates, are to be believed, the defendants were guilty of a most foul and revolting crime, the atrocity of which was only equaled by the boldness with which it was perpetrated.

The defendants each denied on the stand that they, in any way, molested the girls, each in most positive terms denied that they had ravished her. One or more of them admitted that there was a fight between the white boys and the defendants, and that one of them had a pistol, and at least one of them had a knife.

We have deemed it best not to rehearse the testimony in detail in this case, as in many respects it is too revolting, shocking, to admit of being here repeated.

In this connection, however, we think it proper, now and here, to call attention to the fact that many of the utterances in the printed brief, and oral arguments addressed to this court of counsel for appellants, are not supported by the record submitted on this appeal in this case.

The indictment in this case is in the following language, omitting the caption: "The grand jury of said county charge that before the finding of this indictment Haywood Patterson, Eugene Williams, Charlie Weems, Roy Wright, alias Ray Wright, Ozie Powell, Willie Roberson, Andy Wright, Olen Montgomery and Clarence Norris, alias Clarence Morris, whose names to the grand jury are otherwise unknown than as stated forcibly ravished Victoria Price a woman, against the peace and dignity of the state of Alabama."

The sufficiency of this indictment was not tested by demurrer or otherwise, at any time before or during the trial. On motion for new trial, after conviction and sentence, the appellants for the first time question the sufficiency of the indictment. It will be noted that the indictment pursues the form prescribed in the Code (section 4556, form 88), and this court has uniformly held that indictments following the Code forms are sufficient. In the case of Jinright v. State, 220 Ala. 268, 125 So. 606, 607, this court was again called upon to consider, and to pass upon the sufficiency of an indictment prescribed by the Code, and it was there said:

"The power of the Legislature to prescribe the form of indictment is part of its general legislative power. Broadly speaking, it is curtailed only by constitutional limitations, such as the right of the accused to be informed of the nature and cause of the accusation, and to have a copy of same. Bill of Rights, § 6.

"The indictment must reasonably disclose an offense known to the law in force during the period covered thereby, and reasonably inform the accused of the accusation he is called upon to answer. Subject to these qualifications, statutory forms have from our early jurisprudence been held sufficient, although facts essential to a conviction may be omitted. Noles v. State, 24 Ala. 672, 692; Schwartz v. State, 37 Ala. 460, 466; Doss v. State, 220 Ala. 30, 123 So. 231 ."

The indictment in the present case is not subject to the criticism that it is vague, indefinite, and uncertain. The nature and cause of the accusation are definitely stated, and the name of the woman, the subject of the crime, is set forth in the indictment. The form here used was approved by this court in the case of Leoni v. State, 44 Ala. 110. This decision was rendered by this court in 1870, and its correctness has not since been questioned, nor its soundness doubted. There is no merit in this contention of the appellants. Schwartz v. State, supra; Smith v. State, 63 Ala. 55; Whitehead v. State, 16 Ala. App. 427, 78 So. 467; Leonard v. State, 96 Ala. 108, 11 So. 307; Walker v. State, 96 Ala. 53, 11 So. 401; Lang v. State, 97 Ala. 41, 12 So. 183; Reeves v. State, 95 Ala. 31, 11 So. 158; Huffman v. State, 89 Ala. 33, 8 So. 28; Bailey v. State, 99 Ala. 143, 13 So. 566; Coleman v. State, 150 Ala. 64, 43 So. 715; Jinright v. State, 220 Ala. 268, 125 So. 606; Doss v. State, supra; Malloy v. State, 209 Ala. 219, 96 So. 57.

It therefore follows that no rights of the appellants under the State or Federal Constitutions were ignored or invaded by reason of any supposed vagueness, indefiniteness, or uncertainty of the indictment. The terms of the indictment fully and sufficiently informed the defendants of the nature and cause of the accusation against them, and, in this regard, it fully complied with all requirements of the Federal and State Constitutions.

The indictment was returned into open court on March 31, 1931, duly authenticated by the signature of the foreman of the grand jury. This return is in all respects regular, and in accordance with law.

On March 31, 1931, after the return and filing of the indictment, the defendants, Haywood Patterson, Eugene Williams, Charlie Weems, Roy Wright, alias Ray Wright, Ozie Powell, Willie Roberson, Andy Wright, Olen Montgomery, and Clarence Norris, alias Clarence Morris, whose names are otherwise unknown than stated, attended by their counsel came personally into...