Baker v. State

• Decision Date: 10 February 1923
• Docket Number: 7 Div. 309.
• Parties: BAKER v. STATE.
• Court: Alabama Supreme Court

95 So. 467

209 Ala. 142

BAKER v. STATE.

7 Div. 309.

Supreme Court of Alabama

February 10, 1923

Appeal from Circuit Court, Etowah County; O. A. Steele, Judge.

Talmage Baker was convicted of murder in the first degree, and he appeals. Reversed and remanded.

E. O McCord & Son, of Gadsden, for appellant.

Harwell G. Davis, Atty. Gen., and Lamar Field, Asst. Atty. Gen., for the State.

MILLER J.

Talmage Baker was indicted, tried, and convicted of murder in the first degree. His punishment was fixed by the jury at death. He is charged with killing Charley Cox, a merchant who operated a store in a thickly settled neighborhood, and on a car line near Gadsden, Etowah county. The defendant, who resided near by, entered the store about 9 o'clock on Christmas Eve, 1921, wearing a slicker, with a black stocking pulled over his head, goggles over his eyes, gloves on his hands, and a .32 automatic pistol in his hand. Cox was in a chair near the heater at the back of the store. Police Officer Scott was sitting back of the heater, and Elmer, son of Cox, was near his father. The store was poorly lighted in the rear and where the heater was located, but well lighted in front, both inside and out. When the defendant entered the store, he walked two or three feet in the aisle from the front, and demanded "Hands up!" The demand was made a second time, and the hands of Cox and his son went up. Then a pistol duel ensued between the defendant and Policeman Scott; the former using a .32 automatic pistol, and the latter a .45 Colts automatic. Charley Cox was killed during the duel. There was evidence that the wound causing his death was made by a .32, and some evidence that it was made by a .45 pistol ball. The policeman was shot in the hand, and the defendant was shot in the hip and hand.

The defendant made application in writing for change of venue setting forth specially the reasons why he could not have a fair and impartial trial in Etowah county, in which the indictment was found. The application was denied by the court, and the defendant duly excepted to it. The defendant and the state offered much testimony in the form of affidavits, pro and con, on this application. The burden is on the defendant "to show to the reasonable satisfaction of the court that an impartial trial and an unbiased verdict cannot be reasonably expected"; and, when it is shown, the application should be granted, and the venue changed. Seams v. State, 84 Ala. 410, 4 So. 521; section 7851, Code 1907; Godau v. State, 179 Ala. 27, 60 So. 908; Adams v. State, 181 Ala. 58, 61 So. 352.

Affidavits of witnesses, giving their opinion and conclusion that defendant can have a fair and impartial trial from what they have heard from citizens in the county, without stating facts on which the opinion is based, may be offered in evidence on the application; but the better practice is for the witness to state the facts on which his conclusion is reached, and the court in reaching a conclusion on the application from the evidence should be governed more by the facts of the case than by the mere opinion of witnesses, unsupported by facts. Seams v. State, 84 Ala. 413, 4 So. 521.

An application for a change of venue must be made as early as practicable before the trial. It may also be made after conviction, upon new trial being granted, by application as directed by statute, as early as practicable before the next trial. Section 7851, Code 1907. In our opinion the defendant did not meet by the proof the burden resting on him under this application. It does not affirmatively appear from the record that the court erred in denying the application. We think it best for us not to discuss the evidence, and show why we are so convinced, as the judgment must be reversed and a new trial granted for the errors hereinafter shown. The application for a change of venue may be renewed before another trial, and the evidence thereon may be similar, cumulative, or entirely different; and any discussion by us of this testimony might prejudice the next hearing if the application is renewed. Under an application for change of venue before the next or second trial, the inquiry is limited, like before the first trial, to whether the defendant can have a fair and impartial trial, then-at the second trial-when the new application is made and heard, and not when the former application was made and heard before the former trial. Hawes v. State, 88 Ala. 37, 7 So. 302; Crenshaw v. State, 207 Ala. 438, 93 So. 465.

Charley Cox was killed December 25, 1921. The indictment against the defendant for the alleged offense was returned into court February 14, 1922. The defendant was duly arraigned on it, and pleaded not guilty to it on February 22, 1922, and this plea was entered of record. The court on March 6, 1922, overruled the motion for change of venue, and then also entered on the record this:

"To the ruling and action of the court in overruling said motion for change of venue the defendant then and there excepted, and the defendant further pleads 'not guilty' by reason of insanity."

This is the judgment entry on the trial of the defendant by the jury, showing the issue and verdict of the jury thereon:

"On this the 10th day of March, 1922, come M. C. Sivley, solicitor for the state of Alabama, who prosecutes for the state in this behalf, and the defendant in open court in person and by attorneys, and, being so continuously in open court during the progress of the trial of in this case, and in open court heretofore duly arraigned and hearing the indictment against him read, pleaded not guilty thereto, and the issues being joined on defendant's said plea, thereupon comes a jury of good and lawful men, to wit, J. D. Lee and 11 others, who being duly elected, impaneled, sworn, and charged according to law, upon their oaths do say, 'We the jury, find the defendant guilty of murder in the first degree as charged in the indictment, and fix his punishment at death by hanging."'

There is considerable evidence in the record on the insanity of the defendant. Was that issue before the jury? The state in its brief says to the court:

"The result, therefore, is that, since the final judgment recites that the case was tried on the plea of the general issue only, whatever appears in the record with reference to a plea of insanity is outside of the issues on which the case was tried." Is this correct?

In Jackson v. State, 142 Ala. 56, 37 So. 920, this court wrote:

"While the record discloses a plea in abatement to the affidavit, upon which the defendant was arrested and tried, it does not show any disposition whatever of the plea. The judgment entry affirmatively shows that issue was joined upon the plea of not guilty, which excludes any assumption that the issue was joined on the plea in abatement."

In Dannelley v. State, 130 Ala. 132, 30 So. 452, pleas of not guilty, former jeopardy, and former conviction were entered, and evidence was shown by the bill of exceptions to have been introduced on those pleas, and rulings of the court thereon by charges requested by the defendant, but the judgment entry recites, "Issue being joined on defendant's plea of not guilty, come a jury of good and lawful men, to wit," etc. The court in the opinion wrote:

"The majority of the court are of the opinion that, in view of the recital of the judgment entry above copied, it must be held that the only issue in the case was upon the plea of not guilty, and, the jury having responded to this issue, that the judgment must be affirmed."

In Providence S. L. Ins. Soc. v. Pruett, 157 ALA. 546, 47 So. 1022, the court wrote:

"The judgment entry informs us that the case was tried on issue joined on pleas 52, 53, 54, and 55. The recital is such as to preclude inference of any other issue in the case. Such being so, we cannot look elsewhere for the purpose of ascertaining and determining that there were other issues. It is a matter in which the recital in the judgment controls. If the judgment were silent as to the issues, or so vague, indefinite, and uncertain in its recitals as not to inform, then it is permissible to look elsewhere to determine what were the issues. But such is not the case here. The issues were expressly and definitely stated, and this express statement of what the issues were, under familiar rules of construction, is exclusive of inferences of any other issues. Dannelley v. State, 130 Ala. 132, 30 So. 452; Jackson v. State, 142 Ala. 55, 37 So. 920. In support of the judgment of the lower court, it will be presumed that all other pleas than those on which issue was joined were withdrawn or abandoned by the defendant."

In Pabst Brew. Co. v. Erdreich Bros., 158 Ala. 148, 48 So. 397, we find:

"The judgment entry recites that the trial was had on 'issue joined on the defendants' plea of tender.' This recital in the judgment entry is conclusive, and excludes all presumption of joinder of issue on any other plea. Dannelley v. State, 130 Ala. 132."

In Doss v. Wadsworth Red Ash Coal Co., 185 Ala. 601, 64 So. 342, the court wrote:

"This court has adopted the rule that the judgment entry is, when clear in its recitals, the controlling source of information as to what pleading constituted the issues upon which the trial was had. Providence, etc., Co. v. Pruett, 157 Ala. 540, 546, 547, 47 So. 1019; Dannelley's Case, 130 Ala. 132, 30 So. 452; Jackson's Case, 142 Ala. 55, 37 So. 920. In the Pruett's Case, supra, it was said: 'If the judgment were silent as to the issues, or so vague, indefinite, and uncertain in its recitals as not to inform, then it is permissible to look elsewhere to determine what were the issues."'

This defendant was arraigned under the indictment, February 22 1922, and pleaded not guilty thereto, which was entered...