Crowder v. State

• Decision Date: 04 April 1922
• Docket Number: 4 Div. 696. [*]
• Citation: 93 So. 338,18 Ala.App. 632
• Parties: CROWDER v. STATE.
• Court: Alabama Court of Appeals

93 So. 338

18 Ala.App. 632

CROWDER v. STATE.

4 Div. 696. ^[*]

Court of Appeals of Alabama

April 4, 1922

Rehearing Dismissed June 30, 1922.

Appeal from Circuit Court, Pike County; A. B. Foster, Judge.

J. Wade Crowder was indicted for murder in the first degree convicted for manslaughter in the first degree, and he appeals. Affirmed.

W. L. &amp R. S. Parks, of Troy, for appellant.

Harwell G. Davis, Atty. Gen., for the State.

MERRITT J.

The defendant was tried under an indictment which charged murder in the first degree, and was convicted of manslaughter in the first degree, the verdict of the jury fixing his punishment at imprisonment in the penitentiary for a term of five years.

Before entering upon the trial the defendant filed an application for a change of venue, alleging that he could not have a fair and impartial trial in Pike county, this being the county in which the indictment was found. In support of this application the defendant introduced in evidence his affidavit, that of his attorney, and the affidavits of something like 170 persons all living and residing in different parts of the county. These affidavits, in substance, recited the holding of a preliminary trial of the defendant before three justices of the peace in Troy, Ala some time in July, just prior to the trial in the circuit court in December following; that there was a large crowd in attendance upon said preliminary trial, and that the state introduced evidence tending to show that the defendant shot and killed Arthur Head while the said Arthur Head was leaving the bedroom of the defendant, just a moment or two after the defendant had seen the said Head have sexual intercourse with defendant's wife, and further introduced evidence at said trial that about nine years prior thereto the defendant's wife was divorced from her former husband on the ground of adultery with a negro man, and the details of the divorce suit gone into; that the crowd in attendance upon the trial became interested to the point of excitement, and that after the trial reports were circulated throughout the county that defendant's wife had been divorced from a former husband on account of living in adultery with a negro man, and that before defendant married his wife she gave birth to a negro child, and that defendant, who is a doctor, delivered her of said negro baby; that the defendant castrated this negro man, and poisoned his wife's father; that these reports were scattered over the county, and that sentiment was very high and bitter against the defendant, and that, according to the opinion of affiants, the defendant could not get a fair and impartial trial.

The state in its answer denied the allegations of the application that the defendant could not secure a fair trial in Pike county, and in denial of the contention of the defendant offered in evidence the affidavits of about 138 persons residing in different parts of the county, and also the affidavits of the circuit and county solicitors, the sheriff of the county, and one of the justices of the peace before whom the preliminary trial was had. These affidavits recited in substance that, while there had been some discussion as to the testimony adduced before the preliminary as to the relationship that had existed some years between the defendant's wife and a negro man, neither on this or any other account was there reason to believe that the defendant would have other than a fair and impartial trial; that, while there was a large crowd at the preliminary trial, it was held in an orderly and peaceable manner, and neither at that or any time since had there been any unusual excitement except that incident to a crime of this nature; that the defendant was unattended at the trial except by the sheriff; that shortly after the killing the defendant was carried back to the scene of the crime by the sheriff in order that he might get testimony preparatory to his defense; that, shortly after the preliminary trial, when he was denied bail, he was allowed bail on habeas corpus hearing which he made, and since that time defendant had traveled over the country securing affidavits in support of his application for change of venue; that he had attended and mixed with the crowds attendant upon two terms of the circuit court at Troy, the defendant's home being at Linwood, and on none of these occasions had there been any intimation of or attempt to do the defendant any violence, and that the temper of mind of the public was not such as that the defendant could not get a fair and impartial trial.

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 ...