Crowden v. State
| Decision Date | 15 August 1961 |
| Docket Number | 8 Div. 737 |
| Citation | 41 Ala.App. 421,133 So.2d 678 |
| Parties | Dennis CROWDEN v. STATE. |
| Court | Alabama Court of Appeals |
Jas. H. Tompkins, Tuscumbia, for appellant.
MacDonald Gallion, Atty. Gen., John G. Bookout, Asst. Atty. Gen., and Herbert D. Schaefer, Legal Research Aid, Montgomery, for the State.
Appellant was indicted under two counts of (1) larceny of eight cows and (2) buying, receiving or concealing, the said cows. He was convicted under the second count and sentenced to four years in the penitentiary.
Before the trial was commenced a motion was made that the judge recuse himself on the grounds (1) that before the trial began, in an ante-room to the courtroom, when the case was being discussed in the presence of defense counsel and the solicitors for the state, the judge stated: 'I'd rather turn the Negroes aloose than the son-of-a bitch who disposes of the god damn stuff;' (2) that the judge was related to the husband of Mrs. Ida Fennell, the owner of the cows alleged to have been stolen.
Testimony was taken on the motion. It was undisputed that the statements were not made in the hearing of the jury, and no one was present except the judge, the solicitors and defense counsel; that a discussion was taking place with reference to companion cases and the possibility of the defendant's being granted probation in the event he pleaded guilty, and that the judge was also referring to similar cases in another county where several Negroes were indicted and pleaded guilty to stealing hogs and a white man who bought the hogs from the Negroes was not prosecuted. The judge denied the motion to recuse himself.
The holding in the cases of De Moville v. Merchants & Farmers Bank of Greene County, 237 Ala. 347, 186 So. 704, and Riley v. Wilkinson, 247 Ala. 231, 23 So.2d 582 is, we think, contrary to the state's contention that mandamus is the only remedy available to obtain appellate review of a judge's refusal to recuse himself.
The statutory grounds for disqualification of a judge are set out in Code of Alabama 1940, Title 13, Section 6. The only statutory ground having application here is that a judge must not sit in any cause or proceeding in which he is 'related to either party within the fourth degree of consanguinity or affinity, * * *.'
The statutory grounds are not exclusory of the common law disqualifications, and though in Fulton v. Longshore, 156 Ala. 611, 46 So. 989, 19 L.R.A.,N.S., 602, it is said that at the common law prejudice did not disqualify a judge, there are other cases holding that a judge must be 'legally indifferent' between parties. Gill v. State, 61 Ala. 169; Medlin v. Taylor, 101 Ala. 239, 13 So. 310; Pegues v. Baker, 110 Ala. 251, 17 So. 943; Wiggins v. State, 39 Ala.App. 433, 104 So.2d 560.
As to the ground of relationship of the judge to the owner of the cattle alleged to have been stolen, defense counsel stated it was his understanding that the judge was a second cousin of Mrs. Fennell's deceased husband. The relationship was neither affirmed nor denied by the judge. However, if there was such relationship as contended by the defendant, it was within the 6th degree and not the 4th degree prohibited by statute. Owen v. State, 255 Ala. 354, 51 So.2d 541.
We are of the opinion the statements attributed to the trial judge do not show such bias or prejudice in the mind of the judge as would impair the defendant's right to a fair and impartial trial and render the judge incompetent to preside in the trial. We find no error in the judge's refusal to recuse himself.
The defendant moved to quash the indictment on several grounds. The only ground necessary to be considered here is that the grand jury had before it no legal evidence on which to base an indictment.
Evidence was introduced by the defendant tending to show that no witness before the grand jury testified as to defendant's connection with the crime charged. The state offered proof that the grand jury had before it certain documentary evidence.
The established rule is:
'when it appears witnesses were examined by the grand jury, or the jury had before them legal documentary evidence, no inquiry into the suffciency of the evidence is indulged.' Sparrenberger v. State, 53 Ala. 481.
See also, Gore v. State, 217 Ala. 68, 114 So. 794; Gandy v. State, 32 Ala.App. 513, 27 So.2d 798. The court's ruling denying the motion to quash the indictment was without error.
The defendant moved the court for a continuance on the ground that the venire from which the jury was to be selected consisted of only thirty-four names; that twelve members of the venire...
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Hill v. State
...The principle has been applied to a juror who sat on trial of another defendant which involved the same transaction. Crowden v. State, 41 Ala.App. 421, 133 So.2d 678. The principle also applies to a companion case. Dunaway v. State, 291 Ala. 93, 278 So.2d 205 (1973), aff'g 50 Ala.App. 200, ......
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Owens v. State
...the need for a judge to be indifferent in all causes before him. Malone v. State, 46 Ala.App. 363, 242 So.2d 409; Crowden v. State, 41 Ala.App. 421, 133 So.2d 678; Wiggins v. State, 39 Ala.App. 433, 104 So.2d It is to be noted that the affidavit leading up to the issuance of the search warr......
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McLaren v. State
...100 L.Ed. 397. Further, it is well established that no inquiry into the sufficiency of such evidence would be indulged. Crowden v. State, 41 Ala.App. 421, 133 So.2d 678. In the present case, the record shows that the chief assistant district attorney and Detective Turner gave testimony befo......
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Pitts v. State
...jury may be furnished by witnesses' testimony or legal documentary evidence. Fikes v. State, 263 Ala. 89, 81 So.2d 303; Crowden v. State, 41 Ala.App. 421, 133 So.2d 678. At the hearing on the motion to quash, the appellant attempted to elicit answers which would or would not 'connect' the a......