Autrey v. State
Decision Date | 27 June 1967 |
Docket Number | 1 Div. 220 |
Citation | 202 So.2d 88,44 Ala.App. 53 |
Parties | Joseph Earl AUTREY v. STATE. |
Court | Alabama Court of Appeals |
Joseph Earl Autrey, pro se.
MacDonald Gallion, Atty. Gen., and Lloyd G. Hart, Asst. Atty. Gen., for the State.
Appellant was put in the Mobile County jail on December 10, 1964, on a complaint made by his wife on November 26, 1964, for offenses alleged to have been committed by him against two of his daughters on August 7, 1964, at about 6:30 P.M.
On May 12, 1965, the Grand Jury of Mobile County, Alabama, indicted appellant charging that he 'did carnally know, or abuse in the attempt to carnally know Linda Sue Autrey, a girl under the age of twelve years, against the peace and dignity of the State of Alabama'.
On May 26, 1965, appellant, accompanied by his court-appointed attorney, appeared before the court and waived arraignment, entering a plea of not guilty and the case was set for trial on June 16, 1965. On December 9, 1966, the court again set the date for trial at January 10, 1967, after which appellant filed a motion to abate and dismiss the indictment because of his denial of a speedy trial in that he had been held in jail for twenty-four months. This motion was denied by the court.
On January 10, 1967, appellant was tried by a jury, found guilty as charged, and sentenced to a term of ten years in the State penitentiary.
Appellant's wife, Rosie Autrey, declined to testify against her husband.
Appellant's fourteen year old daughter, Linda Sue Autrey, testified that on August 7, 1964, at approximately 6:30 P.M. (at which time she was twelve years of age) she and her ten year old sister, Gloria, were in bed; that her father came into the bedroom, 'took his clothes off and got in bed with us'; that 'his body was completely exposed'; that he 'pulled my panties off', 'got on top of me and started going up and down'; and that he 'placed his private parts in my private parts'. She stated that this had happened twice previously. The witness stated that her father then got on top of her sister and repeated the performance.
Gloria Jean Autrey testified substantially the same as her sister. She stated that her father had been drinking on the night in question, that she saw him perform the act with her sister, and that afterwards he repeated the act with her.
Four of the appellant's sons testified that the appellant was a good father, lived a good life, and had taught them to be good and obedient.
Twelve witnesses testified that appellant's reputation for truth and veracity in the community was good.
Appellant then took the stand in his own behalf and denied the charges against him. He stated that he had had trouble with his oldest daughter, Lottie; that just prior to the alleged offense, Lottie, accompanied by Gloria, had taken his car without his permission; that he had later had to call the police to pick them up; and that Lottie and Gloria had both been placed in the juvenile detention home. He testified that shortly after they were placed in the detention home, this complaint was filed against him; that he did not know how the August 7 date was chosen by the State's witnesses as the date of the alleged incident. He further testified that Gloria was slightly retarded.
This court, by Tit. 15, Sec. 389, Code of Ala., 1940, will consider all elements of the case in question, whether or not error has been assigned. Appellant, perfecting his own appeal, has also specifically assigned as error eleven questions for this court to consider. We find no merit in appellant's claims of error Nos. 2--5 and 8--11.
Appellant contends by his claim of error No. 7 that 'the trial court erred when it refused to issue a subpoena for Dr. C. H. Ross, the doctor who allegedly examined the complainant in December, 1964.' The record reveals the following regarding this contention:
Compulsory attendance of this witness rested fully within the discretion of the trial judge. It is not shown that this doctor possessed any evidence beneficial to appellant, and in the absence of such showing, we hold that the trial judge did not abuse his discretion in his failure to compel attendance of this doctor.
Appellant further contends that there was insufficient evidence to sustain conviction. However, after reading the evidence presented by the State, we are of the conclusion that the evidence presented a fact for the jury to decide as to appellant's guilt.
Appellant also contends as claim of error No. 1 that it was error for the trial court to not provide him with a special venire and that he had not waived his right to same.
Tit. 30, Sec. 63, Code of Alabama, 1940, requires a special venire for all capital cases. To waive this special venire, appellant must do so in writing.
Tit. 15, Sec. 380, Code of Alabama, 1940, states in part as follows concerning what a transcript must Not contain:
'Such transcript must not contain * * * the venire for any grand or petit jury, nor the organization of regular juries for the week or time at which the case was tried, nor the order of the court for a special venire * * *; but, in the absence of any such question, such proceedings are, upon appeal, presumed to have been regular and legal.'
The record of the trial complies with this code provision and does not show anything concerning a special venire. However, the record also does not disclose any objection or outcry during the course of the trial because of a lack of a special venire.
The case of Davis v. State, 259 Ala. 212, 66 So.2d 714, states in part as follows:
'Under the law as now set up the failure to comply with any of those provisions required to be omitted from the transcript (as by Tit. 15, Sec. 380, supra) amounts to a waiver and Is not available on appeal.' (Emphasis ours)
See also Seals v. State, 271 Ala. 142, 122 So.2d 513.
Since the record relates no objection on the question of a special venire in the trial court, appellant may not now raise it on appeal.
One major question must, however, be considered by this court, and that is the time lapse between the arraignment of appellant, at which his trial was first set, and the second setting of his trial, a lapse of some nineteen months, unexplained by the record.
Looking at this lapse most strongly in favor of appellant, as mentioned by his Motion to Abate and Dismiss Indictment and Prosecution, the question is then raised as to whether or not the constitutional rights to a speedy trial owed appellant have been violated.
The Constitution of Alabama, 1901, Art. 1, Sec. 6, states in part as follows:
'* * * and, in all prosecutions by indictment, a speedy, public trial, by an impartial jury of the county or district in which the offense was committed * * *.'
On its face, it therefore appears that this total elapsed time of over twenty-four months from arrest to trial had violated appellant's right. However, the case of Ex parte State ex rel. Attorney General, 255 Ala. 443, 52 So.2d 158, states as follows:
The United States Circuit Court of Appeals also stated in Worthington v. United States, 7 Cir., 1 F.2d 154:
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...Ex parte State ex rel. Attorney General, 255 Ala. 443, 52 So.2d 158; Washington v. State, 45 Ala.App. 173, 227 So.2d 805; Autrey v. State, 44 Ala.App. 53, 202 So.2d 88, cert. denied, 390 U.S. 1030, 88 S.Ct. 1422, 20 L.Ed.2d 287. And although there exists a body of opinion which questions th......
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