183 So. 879 (Ala.App. 1938), 7 Div. 283, Welch v. State

Docket Nº:7 Div. 283.
Citation:183 So. 879, 28 Ala.App. 273
Party Name:WELCH v. STATE.
Attorney:Beddow, Ray & Jones, of Birmingham, for appellant. [28 Ala.App. 276] A. A. Carmichael, Atty. Gen., and Chas. L. Rowe, Asst. Atty. Gen., for the State.
Case Date:May 10, 1938
Court:Alabama Court of Appeals
 
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Page 879

183 So. 879 (Ala.App. 1938)

28 Ala.App. 273

WELCH

v.

STATE.

7 Div. 283.

Court of Appeals of Alabama

May 10, 1938

Rehearing Denied June 30, 1938.

Appeal from Circuit Court, Talladega County; R. B. Carr, Judge.

Homer Welch was convicted of manslaughter in the first degree, and he appeals.

Affirmed.

Certiorari denied by Supreme Court in Welch v. State, 7 Div. 524, 183 So. 886.

Page 881

Beddow, Ray & Jones, of Birmingham, for appellant.

[28 Ala.App. 276] A. A. Carmichael, Atty. Gen., and Chas. L. Rowe, Asst. Atty. Gen., for the State.

SAMFORD, Judge.

The defendant, together with 11 others, was indicted by the grand jury of Talladega county on a charge of murder in the first degree. When the cause was called for trial the defendant moved for a severance, which motion was granted, and this defendant, alone, was placed on trial.

At the time of trial, and in accordance with the statute, the defendant made his motion for a change of venue in accordance with section 5579 of the Code of 1923, setting forth specifically the reasons why he could not have a fair and impartial trial in Talladega county, the county in which the indictment is found. The motion was in legal form and meets all of the requirements of the statute.

Issue was joined on this motion, and after hearing the evidence, both for the movant and the State, the motion was denied. This act of the court is made the basis of an insistence that the judgment in this case should be reversed and the cause remanded.

Bearing in mind the statute which provides that: "The refusal of such application may, after final judgment, be reviewed and revised on appeal, and the supreme court or court of appeals shall reverse and remand or render such judgment on said application, as it may deem right, without any presumption in favor of the judgment or ruling of the lower court on said application," we have proceeded to a consideration

Page 882

of the question from the evidence as it is presented by the bill of exceptions.

The crime, if committed at all, having been committed in Talladega county, the venue is legally there, and the presumption is that the defendant would have, at the hands of duly constituted authorities, a fair and impartial trial according to the forms of law. The burden is upon defendant to prove that this is not true, and this must be shown to the reasonable satisfaction of the court. Notwithstanding the statute which makes it the duty of this court to review and revise on appeal, the action of the trial court in refusing to grant an application for a change of venue--"without [28 Ala.App. 277] any presumption in favor of the judgment or ruling of the lower court on said application," the rule which fixes the burden upon the defendant to show to the reasonable satisfaction of the court that an impartial and unbiased verdict cannot be reasonably expected is not changed. In Crowder v. State, 18 Ala.App. 632, 93 So. 338, it was said (page 339): "Under the provisions of an act entitled an act 'to amend section 7851 of the Code of Alabama,' approved August 26, 1909, it is made the duty of this court to review and revise, on appeal, the action of a trial court in refusing to grant an application for a change of venue 'without any presumption in favor of the judgment or ruling of the lower court on said application.' Acts Special Session 1909, p. 212. In thus reviewing the matter, however, the rule is not changed that the burden is upon the defendant to show to the reasonable satisfaction of the court that an impartial trial and an unbiased verdict cannot be reasonably expected." Baker v. State, 209 Ala. 142, 95 So. 467; Malloy v. State, 209 Ala. 219, 96 So. 57.

The evidence on the question is very voluminous, including many affidavits from citizens of Talladega county in every walk of life. And, without going into details relative to this evidence, this court is clear to the conclusion that the defendant has not met the burden of proof, and from the evidence adduced it appears that defendant could obtain such fair and impartial trial as the law guarantees within the county of the venue, and that the trial judge committed no error in denying the motion.

The defendant then filed a plea in abatement, setting forth the fact that there was then pending a prior prosecution of this defendant for the same acts and upon the same charge, as that charged in this indictment, upon an indictment returned into court by the grand jury prior to the time the indictment in this case was returned and filed. On motion of the solicitor this plea was stricken. Such a plea in abatement is not an answer to the indictment in this case. If, as matter of fact, there were two cases of the same kind and character, the trial and determination of the one might be pleaded in bar of a prosecution in the other, but the pendency of the one could not abate the prosecution of the other. Treadaway v. State, 18 Ala. App. 409, 92 So. 529; Whitaker v. State, 21 Ala.App. 114, 105 So. 433.

At the beginning of the trial the defendant filed his motion to quash the venire, on the ground that the jury box from which the venire was drawn had been prepared in a manner contrary to law and that the filling of said box was tainted with fraud; in that, the jury commission intentionally and purposely failed at the time said jury box was filled, and when the jury roll from which said box was filled was made up, to include in said jury roll the name of each and every person in said...

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