Clayton v. State

• Decision Date: 16 April 1929
• Docket Number: 6 Div. 303.
• Citation: 123 So. 250,23 Ala.App. 150
• Parties: CLAYTON v. STATE.
• Court: Alabama Court of Appeals

123 So. 250

23 Ala.App. 150

CLAYTON v. STATE.

6 Div. 303.

Court of Appeals of Alabama

April 16, 1929

Rehearing Denied May 7, 1929.

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

Lee A Clayton was convicted of kidnapping, and he appeals. Reversed and remanded.

Rice J., dissenting.

Horace C. Wilkinson, of Birmingham, for appellant.

Charlie C. McCall, Atty. Gen., and Thomas E Knight, Jr., Asst. Atty. Gen., for the State.

SAMFORD J.

This case is in effect a companion case to Doss v. State, 123 So. 237, pending in this court, in which case is discussed the organization of the grand jury and the rulings on demurrer. On these two questions the rulings of this court are the same in both cases. It therefore becomes unnecessary to repeat them here.

At the beginning of the trial the defendant moved the court for a continuance for and on account of public excitement and prejudice engendered against him by reason of publications appearing in three daily papers relative to the trial in the Doss Case and the rulings of the court and incidents occurring in the trial of Doss and incidental to the preliminaries in the trial of this case, all of which were in the presence and hearing of the jurors who were to try and determine the issues in defendant's case. It was contended that by and through all these influences the minds of the jurors had become so filled with the "atmosphere" of the trial adverse to defendant as to render a fair trial at that time unlikely. Every lawyer of any considerable experience will know and understand what is meant by the term "atmosphere of the trial," and will appreciate the difficulty of a trite description of such a condition. Such condition can only be produced by facts, incidents, happenings, and subtle influences concurrent with and connected with the trial of a case in court and on trial. Incidents which of themselves are innocent enough and ordinarily would mean nothing under some circumstances may aid in feeding an excitement of the mass mind to such an extent as to make the act one to be considered seriously in determining the question of a prevailing prejudice. As in this case the defendant and Eugene Doss and others were indicted by the grand jury of Blount county on a charge of kidnapping one Calloway and giving him a flogging. This indictment followed the call of the grand jury and was set for trial, at a special call of the circuit court of Blount county called for the purpose of trying the cases of this defendant and others indicted by the grand jury for the kidnapping of Jeff Calloway. The indictments were returned into court on July 19, 1927, and on August 1, 1927, the trial of Doss was entered into and continued to and into the beginning of the trial of this case on August 4, 1927. The trial was conducted by the Attorney General of the state, assisted by two of his Assistant Attorneys General and the circuit solicitor, while the defendant and Doss were represented by eminent lawyers from Birmingham and Oneonta. There were also present at the Doss trial and at this trial reporters for the associated press and three leading daily newspapers of general circulation both in Oneonta, the place of trial, and throughout the state. It was charged generally in the town and county and in the press that Doss and this defendant were members of a secret order called the "Knights of the Ku Klux Klan," and that the kidnapping and whipping of Calloway was the result of an order of this secret organization who paraded in robes and hoods and were attempting behind their hoods to set up an "invisible government" to correct the morals of certain communities. So far as the veniremen and the crowds attendant upon the court were concerned, the trials of Doss and this defendant were one and the same and merged naturally into one another, and the incidents occurring during the Doss trial and in the presence of the entire venire must of necessity have affected the trial of his defendant. At the beginning of the trial in the Doss Case and in the presence of the entire venire one James Esdale, who was called "Grand Dragon" of the Knights of the Ku Klux Klan, was called and examined, and on the pretext that he was being examined touching a subp na duces tecum, in which the records of the K. K. K. lodge at Tarrant City were called for, the state entered into an inquiry of the management and control of the K. K. K. in the state and as to its activities in defending the pending cases, and the employment of counsel. The extent of this examination covered a wide range and extended over 14 pages of the transcript. Immediately following this examination the tendency of which was to draw the K. K. K. into the trial, the prosecution of this defendant proceeded. The proceedings of the Doss trial were published at length in the three daily newspapers above referred to and circulated freely in Oneonta and among the veniremen, most of whom answered in court that they had either read the reports, heard them read, or heard them discussed. These newspaper reports carried a ground picture of the six men indicted for kidnapping Calloway, and were interspersed with head lines suggesting the highest points in the testimony such as:

"Calloway case given to jury, submitted without argument. Report to court ordered for 8:30 o'clock Thursday morning. Dramatic moves mark last day. Wilkinson fails in strenuous effort to discredit witness."

These reports also contained comments on the trial, such as:

"Oneonta Interested.

"Oneonta is still intensely interested in the trial and the crowds in the courtroom still filled the room to capacity. It is believed that the state will close its case late this afternoon and that the defense will require at least two days to present its evidence. James Esdale, Grand Dragon of the Ku Klux Klan in Alabama, for whom an instanter subp na was issued yesterday on order of Judge O. A. Steele, was served with the attachment late yesterday in Birmingham. Esdale, wanted by the state as a witness, took his place in the witness room with other witnesses. Judge Steele did not indicate whether or not he would take any steps against Esdale for the latter's failure to answer a summons as a witness."

"High points of the testimony came when Wilkinson made Tom Hughes, one of the Tarrant City Klansmen who gave valuable information to officers during the investigation, admit that he had been constantly under guard of the state law enforcement officers, and McCall developed that Hughes had been threatened by nearly 50 people since the day he told McCall the details of the flogging on June 26th.

"Two Words Play Part.

"The dramatic moment of the afternoon was furnished in the cross-examination of Tidwell, when Wilkinson nearly discredited the witness and his testimony. The incident revolved about the use of one of two words, 'Could' or 'Would.' Tidwell on direct examination had told the jury that he had told McCall on July 15th the complete details of the Calloway flogging, only after McCall had made the statement that he, Tidwell, could be put in jail if he did not tell the truth. On cross-examination, Wilkinson led to the same statement and then placed Tidwell in a quandary, because he could not remember whether he had said 'Could' or 'Would,' on direct examination.

"Tells of 'Coming Clean.'

"Had Wilkinson succeeded in getting Tidwell to say that he had originally used 'Would' on direct examination, it would have meant that his statement to McCall had been obtained by threats, and such statement is not legal. In explaining how he happened to 'Come clean' with McCall, he said that he finally told the story after McCall had drilled him for more than an hour, during which time McCall had told him nearly as much about the flogging as he already knew. He even told me what side of the automobile I was riding on on the trip from Antioch Church to where the flogging occurred. Tidwell said that up to that time he had told McCall nothing more than that he had gone to Antioch Church that night."

"The Heart of the Issue.

"Counsel for the defense asked the witness if Calloway was drinking, but the state's objection was sustained by the court. To still another question whether Calloway took a drink or had liquor in his possession, the court would not permit an answer. Counsel for the defense asked several questions in rapid fire along this line, whereupon Judge Steele asked him if he meant that if Calloway was drinking or had liquor in his possession, it was an excuse for the infliction of the punishment given Calloway. Counsel responded promptly, 'No, not at all.' Several other queries regarding drinking brought a reprimand from the court.-From a news account of the Doss flogging trial.

"The state of Alabama has a reason to congratulate itself that a man of Judge Steele's caliber is presiding at Oneonta. His courage and acumen are revealed in the foregoing passage. He is a Judge who hews to the line, letting the chips fall where they may. Here, furthermore, is a judge who sees with the utmost clarity the heart of the issue involved in the substitution of private vengeance for the processes of the law.

Counsel for the defense may, with the utmost clarity, deny that he wishes to present young Calloway's drinking as an excuse for his flogging, but why did he make the inquiry if such was not his purpose, and why did he continue the self-same questioning in the teeth of Judge Steele's ruling, unless he was anxious to drive home to the jury a connection between Calloway's alleged tippling and the outraged sensibilities of the hooded mob? It is a common practice for lawyers to try to squeeze in improper testimony through the devices of the pettifogger, and it is the too common practice...