Swain v. State

• Decision Date: 05 September 1963
• Docket Number: 7 Div. 581
• Citation: 156 So.2d 368,275 Ala. 508
• Parties: Robert SWAIN v. STATE of Alabama.
• Court: Alabama Supreme Court

Page 368

156 So.2d 368

275 Ala. 508

Robert SWAIN v. STATE of Alabama.

7 Div. 581.

Supreme Court of Alabama.

Sept. 5, 1963.

Rehearing Denied Sept. 26, 1963.

Orzell Billingsley, Jr., and Peter A. Hall, Birmingham, for appellant.

Richmond M. Flowers, Atty. Gen., and Leslie Hall, Asst. Atty. Gen., for the State.

GOODWYN, Justice.

Robert Swain, a Negro, was indicted in Talladega County for the rape of a seventeen year old white girl, found guilty, and sentenced to death. His appeal here is under the provisions of the automatic appeal statute. Act No. 249, appvd. June 24, 1943, Gen.Acts 1943, p. 217; Recompiled Code 1958, Tit. 15, § 382(1), et seq.

Appellant filed motions to quash the indictment and the trial venire on the ground that Negroes were habitually, intentionally, and systematically excluded from the jury rolls of Talladega County, in violation of the equal protection clause of the Four-teenth Amendment to the Constitution of the United States. The motion to quash the indictment was overruled after the taking of considerable evidence at an oral hearing before the trial court. The court made a finding that the allegations of the motion 'are untrue and not supported by the evidence.'

The parties stipulated 'that all legal and competent evidence submitted either for the dedendant or for the state in connection with the motion to quash the indictment' was to be submitted 'in support of and opposed to the motion to quash the jury venire' and was 'to be considered by the court as if taken in connection with a hearing on this motion.' The motion to quash the trial venire was also overruled.

Appellant was represented at his arraignment by two attorneys of his own choice. At that time he entered pleas of 'not guilty' and 'not guilty by reason of insanity.' The same counsel represented him throughout his trial and on his motion for a new trial, and also represent him on this appeal.

Being mindful of our duty under the automatic appeal statute, we have carefully considered all of the testimony, even though no lawful objection or exception was made thereto, and find none seriously prejudicial to the rights of appellant; nor can we find, upon consideration of all the testimony, that the verdict is so decidedly contrary to the great weight of the evidence as to be wrong and unjust. See: Act No. 249, § 10, supra; Recompiled Code 1958, Tit. 15, § 382(10), supra. The verdict is amply supported by the evidence.

The evidence as to what happened on the occasion of the alleged rape was substantially as follows:

During the daytime on February 7, 1962, the complaining witness was at the home of her mother and father on the Millerville-Goodwater Highway in Talladega County. She was alone except for her four months old sister for whom she was caring. She heard a knock on the front door, opened it, and found appellant there. Appellant asked if there was a man there and if he could use a phone. He told the witness he had had car trouble and wanted to use the telephone. The request was refused. Appellant then gave her a number to call. She made the call but found the telephone was not in service. The telephone rang, she closed the door, and answered the phone. At that time, she saw appellant still standing on the porch and went back to lock the door. She went back to the telephone and talked to her present husband, then laid the telephone down and went to tell appellant to leave, at which time she opened the door and appellant pushed his way into the house. She then ran to the back door where appellant grabbed her and started choking her and told her he would kill her if she did not shut up. She started screaming. Appellant turned her loose and went back into the living room and put the telephone back on the hook. He then came back and stood against the door. He told the witness he was an ex-convict, or an escaped convict, and all he wanted was something to eat. She agreed to fix him something to eat if he would leave, but when she started to do so, he followed her to the kitchen and asked her to go into a bedroom with him. She refused several times. Appellant became angry. In the meantime, she had picked up the baby. She told appellant to turn off the heater, then started to run back into the living room and got out on the porch and off the porch into the front yard. She was running and fell, but got up and started to run again, leaving the baby lying on the ground. Appellant caught her. She was dressed at that time in a housecoat, pajamas, panties and brassiere. Her hair was rolled up on rollers and fastened with bobby pins. Appellant started pulling her back toward the house, first by her arms and then by her hair. He dragged her several feet by the hair back to where the baby was lying on the ground and told her to pick up the baby. He jerked the witness to her feet by the hair of her head. He then picked the baby up by her arm and again started pulling the witness back toward the house by her hair. When they got to the porch she grabbed one of the posts and wrapped her arms around it, at which time she was screaming. The post became loose from the bottom of the porch. She tried to grab another post but could not. She wrapped a leg around part of the door facing. He took his hands and pulled her by her legs into the house and dropped her on the floor. She picked up the baby and pulled herself up into a chair and again asked him to leave her alone and to leave the house. While they were in the yard, appellant struck her in the face with his hands. After she sat down in the chair he sat down on the arm of the chair, put his arm around her, and tried to make her kiss him. She resisted his advances, and he started hitting her again in the face and told her to take off her pajamas, which she refused, whereupon he ripped off the left leg of the pajamas. He then forced her into a bedroom, where he told her that he would shoot the baby between the eyes. He then put the witness on the bed, took off her panties, laid down on top of her, told her he would kill the baby, and proceeded to have sexual intercourse with her. When he finished, he pulled her into the kitchen and told her not to tell anybody what had happened. About that time she saw her younger brother returning from school and appellant left by the rear door of the house. Later in the evening, she saw appellant at the Talladega County jail and identified him as her assailant.

The grounds of the motion to quash the indictment may be summarized as follows:

That Negroes are systematically excluded from the grand juries of Talladega County solely because of their race; that no member of such race, or a mere token number, are included on the jury roll or have their names placed in the jury box; that, if so placed, they are not drawn for service on any grand jury; that no Negro served on the grand jury which indicted appellant, 'nor has any Negro served on a Talladega County, Alabama, grand jury in modern times; or if any Negroes have served on any of said grand juries, such service has only constituted a mere token number of eligible Negro male citizens'; that there exists in Talladega County a system, practice, or custom, in drawing or organizing grand juries, which is 'designed to totally exclude Negroes from service on such grand juries or to discriminate against Negroes solely on account of their race or color'; that the 1960 Federal census shows that, at the time the grand jury returned the indictment against appellant, that male population of Talladega County, twenty-one years of age and over, consisted of 12,125 whites and 4,281 Negroes; that the great majority of the Negroes possess all of the prescribed qualifications for selection and service as grand jurors; that, at the time of the indictment and at the present time, less than 5% of said Negro males were and are on the jury roll of said County; that 'the method of selection of the names of Negroes to be placed on the jury roll and in the jury box of Talladega County, Alabama, by the jury commission, is highly irregular and arbitrary and contrary to the method prescribed by the Constitution and laws of the State of Alabama and of the United States'; that 'members of the Negro race are, solely because of their race or color, arbitrarily, intentionally and systematically excluded in the selection of persons for Grand Jury duty, in that the great majority of those qualified for service in Talladega County, Alabama, are not included on the jury roll, or if included on said roll, their names are left out of the jruy box, or if put into the box and drawn, they are not listed for service, and because of the aforesaid practices, no Negroes, or only a mere token number have served on a Grand Jury in Talladega County, Alabama, since the days of Reconstruction, or certainly not in modern times'; and that the grand jury which returned the indictment against appellant 'was organized according to and in keeping with the aforesaid practice.'

The motion to quash the trial venire is based on substantially the same grounds as the motion to quash the indictment, with the following additional grounds:

'Members of the Negro race, otherwise qualified to serve have been systematically excluded from service on the aforesaid jury, or discriminated against in the organization of said jury, in that no member of the Negro race has been drawn for service thereon; or that a mere token number have been drawn for service thereon; that there is no probability of them actually trying or participating in the trial of this, or any other case'; that 'since the year of 1953, and before, and continuing to this date, there has been a uniform practice by the jury board of Talladega County, Alabama, of discriminating against prospective Negro jurors solely because of their race or color, either by leaving their names off the jury roll altogether or by including so few of their names in the jury box from which the venire is drawn, as to...