Aaron v. State

• Decision Date: 14 July 1960
• Docket Number: 3 Div. 887
• Citation: 122 So.2d 360,271 Ala. 70
• Parties: Drewey AARON v. STATE of Alabama.
• Court: Alabama Supreme Court

Page 360

122 So.2d 360

271 Ala. 70

Drewey AARON v. STATE of Alabama.

3 Div. 887.

Supreme Court of Alabama.

July 14, 1960.

Solomon S. Seay, Jr., Montgomery, and J. L. Chestnut, Jr., Selma, for appellant.

MacDonald Gallion, Atty. Gen., Geo. D. Mentz, Asst. Atty. Gen., and Wm. F. Thetford, Circuit Solicitor, Montgomery, for the State.

LAWSON, Justice.

The appeal is from a judgment of conviction for rape with infliction of the death penalty.

The victim, a white woman, was ravished by a Negro man on June 27, 1959.

The appellant, Drewey Aaron, Jr., a Negro, was indicted by a grand jury of Montgomery County on July 17, 1959.

On July 20, 1959, before arraignment and the setting of the case for trial, Aaron moved that the arraignment be continued for one week. The motion for continuance was overruled.

On the same day Aaron filed a motion to quash the indictment, which contained four grounds. Grounds One, Two and Three were stricken on motion of the State. The State joined issue as to the fourth ground, which was overruled after a hearing.

Aaron was arraigned on July 20, 1959. He was represented at arraignment by counsel of his own choice. He pleaded not guilty and not guilty by reason of insanity.

On July 29, 1959, the day set for the trial of the cause, Aaron moved for the appointment of a lunacy commission and for a continuance. After a hearing these motions were denied.

The cause came on for trial before a jury on July 29, 1959. The jury found Aaron guilty and imposed the death sentence on July 30, 1959. Judgment and sentence were in accord with the verdict. Aaron's motion for new trial was denied.

The appeal here is under the automatic appeal statute. Act 249, approved June 24, 1943, General Acts 1943, p. 217. See 1955 Cum. Pocket Part, Vol. 4, Code 1940, Title 15, § 382(1) et seq.

After determining that Aaron is an indigent person, without sufficient funds to pay for the services of an attorney to represent him on appeal, the trial court appointed counsel who represented Aaron in the trial court to prosecute this appeal and to appear here in his behalf.

We will first observe that no reversible error is shown by the refusal of the trial court to postpone arraignment. There is nothing in this record to indicate that the defendant was injured by such refusal. At arraignment counsel for defendant interposed pleas to the indictment after defendant's motion to quash the indictment was disposed of adversely to him. The matter of continuance in a criminal case is addressed to the trial court's sound discretion, the exercise of which will not be disturbed unless clearly abused. Logan v. State, 251 Ala. 441, 37 So.2d 753. See Avery v. State, 237 Ala. 616, 188 So. 391, certiorari granted 308 U.S. 540, 60 S.Ct. 119, 84 L.Ed. 455, affirmed 308 U.S. 444, 60 S.Ct. 321, 84 L.Ed. 377.

The record does not include a motion to strike the motion to quash. No doubt the motion to strike was oral. It should have been in writing. § 214, Title 7, Code 1940; Southern Ry. Co. v. Penny, 22 Ala.App. 199, 114 So. 15. Cf. Weller & Sons v. Rensford, 185 Ala. 333, 64 So. 366.

As far as this record indicates, the trial court struck the first three grounds of the motion to quash simply on the statement of the Solicitor that 'the State moves to strike the first three grounds of the motion [motion to quash the indictment].' The Solicitor did not explain the theory or theories on which he based his contention that those grounds of the motion to quash the indictment should be stricken.

But the fact that the State's motion to strike was oral should not work a reversal of this cause if in fact the grounds of the motion to quash the indictment which were stricken were without merit.

In considering the action of the trial court in striking the first three grounds of the motion to quash the indictment, the averments of those grounds must be taken as true as against the motion to strike. Standard Tilton Milling Co. v. Toole, 223 Ala. 450, 137 So. 13.

The first ground of the motion to quash is to the effect that the indictment is void because Aaron's arrest was illegal in that he was arrested by Montgomery County officers without a warrant and in the presence of 'a mob of armed, threatening and abusive citizens.'

Under the provisions of § 154, Title 15, Code 1940, an officer may arrest any person for a felony, although not committed in his presence, if he has reasonable cause to believe that the person arrested committed the offense. Devers v. Harris, 238 Ala. 610, 193 So. 110. See also Ex parte Rhodes, 202 Ala. 68, 79 So. 462, 1 A.L.R. 568. It is not averred that Aaron was not arrested for a felony or that the arresting officers did not have reasonable cause to believe that he was the person who committed the offense for which he was arrested. The mere fact, if it be a fact, that 'a mob of armed, threatening and abusive citizens' were present at the time of the arrest would not affect the legality of the arrest.

Since the averments of the first ground of the motion to quash the indictment do not show an illegal arrest, it is unnecessary to pass on the question as to whether an indictment is subject to being quashed simply because the person indicted had been previously arrested illegally.

The second ground of the motion to quash is to the effect that the indictment is illegal because after his arrest, Aaron was held for approximately ten hours in the county jail of Montgomery County without being allowed to confer with counsel, parents, spouse, or friends and that he was thereafter transferred to Kilby Prison, a State penitentiary, where he remained for approximately forty-eight hours.

The third ground of the motion to quash the indictment is in substance that on June 29, 1959, two days after Aaron's arrest, he was returned to the county jail of Montgomery County where he remained for approximately eight days before he was taken before a magistrate.

We are aware of no state or federal decision which holds that an indictment by a grand jury of a state is subject to being quashed because the person indicted was held incommunicado after his arrest and was not taken before a committing magistrate promptly after his arrest by law enforcement officers. We are not advised of any statute of this state which requires a person arrested by an officer to be taken before a magistrate within any specified time after the arrest. Cf. § 160, Title 15, Code 1940, which relates to arrests by private individuals.

We hold that the first three grounds of the motion to quash the indictment were stricken without error in that they did not state grounds which called for the quashing of the indictment.

The fourth ground of the motion to quash the indictment is to the effect that the indictment was based 'upon an alleged confession of guilt which same was extorted and illegally obtained from defendant herein under circumstances of extreme duress and by and through force and violence or threats of force and violence, coercion, torture and brutality of officers of the County of Montgomery, and the State of Alabama, while acting in their official capacities, * * *'

The State took issue on this ground of the motion to quash the indictment. The record shows that the victim appeared before the grand jury and positively identified the defendant, Aaron, as being the man who raped her. After the appearance of the victim a confession was presented to the grand jury.

Even if it be conceded that the confession which was presented to the grand jury was obtained by force and duress to such an extent that it would not have been admissible in evidence in the trial of the case, it does not follow that its presentation to the grand jury renders the indictment void or subject to being quashed.

In Fikes v. State, 263 Ala. 89, 81 So.2d 303, 310, we said: 'If legal evidence is given, we may add, an indictment is not subject to be quashed because there was illegal evidence also given.'

We do not understand the Supreme Court of the United States to have based its reversal of our judgment in the Fikes Case on the quoted statement. See Fikes v. State of Alabama, 352 U.S. 191, 77 S.Ct. 281, 1 L.Ed.2d 246.

In Holt v. United States, 218 U.S. 245, 31 S.Ct. 2, 4, 54 L.Ed. 1021, the Supreme Court of the United States was called upon to decide whether an indictment should be quashed because procured in part by incompetent evidence of an admission by the accused, aside from which 'there was very little evidence against the accused.' That court refused to hold that such an indictment should be quashed, stating, 'The abuses of criminal practice would be enhanced if indictments could be upset on such a ground.'

In Costello v. United States, 350 U.S. 359, 363, 76 S.Ct. 406, 408, 100 L.Ed. 397, the Supreme Court of the United States said in part as follows:

'* * * If indictments were to be held open to challenge on the ground that there was inadequate or incompetent evidence before the grand jury, the resulting delay whould be great indeed. The result of such a rule would be that before trial on the merits a defendant could always insist on a kind of preliminary trial to determine the competency and adequacy of the evidence before the grand jury. This is not required by the Fifth Amendment. An indictment returned by a legally constituted and unbiased grand jury, like and information drawn by the prosecutor, if valid on its face, is enough to call for trial of the charge of the merits. The Fifth Amendment requires nothing more.'

See Lawn v. United States, 355 U.S. 339, 78 S.Ct. 311, 2 L.Ed.2d321.

The trial court correctly refused to quash the indictment on the basis of the averments contained in the fourth ground of the motion to quash.

The 'Motion for Appointment of Lunacy Commission' alleged, in part, that: '* * due to the nature of the offense charged in the aforesaid indictment, and due to the conduct of the defendant, both before and since his apprehension, there is...