Davis v. State, 6 Div. 449

• Decision Date: 30 June 1953
• Docket Number: 6 Div. 449
• Citation: 66 So.2d 714,259 Ala. 212
• Parties: DAVIS v. STATE.
• Court: Alabama Supreme Court

Page 714

66 So.2d 714

259 Ala. 212

DAVIS v. STATE.

6 Div. 449.

Supreme Court of Alabama.

June 30, 1953.

Young & Young and R. G. Redden, Vernon, for appellant.

Si Garrett, Atty. Gen., and M. Roland Nachman, Jr., Asst. Atty. Gen., for the State.

PER CURIAM.

Appellant was convicted of rape and his punishment fixed at death.

The trial was had on May 19, 1952. The crime is claimed to have been committed on March 1, 1952. Defendant was represented by two attorneys appointed by the court. Before the jury was selected, defendant's attorneys stated to the judge that they would like to show that defendant is a juvenile under the age of sixteen years. To this the judge responded that he would 'permit you time to get your witnesses and will admit any legal evidence in the case.'

The defendant had been arraigned and plead not guilty, and a plea to the jurisdiction of the court on account of being under the age of sixteen years at that time. This invoked the benefit of section 363, Title 13, Code. After the jury was selected and sworn, and the State's counsel read the indictment to the jury, defendant's counsel proposed to have his plea in abatement considered and asked leave to offer evidence as to defendant's age. The court had the jury withdraw and proceeded to hear evidence as to defendant's age. Defendant testified that he was born in Schlater, Mississippi, and reared in Clarksdale, Mississippi: that his mother's name is Mary Davis, and his father's name is Roosevelt Davis. His father died in 1947; and his mother now lives in Chicago, and that he has eight brothers and sisters. That he was born June 13, 1936, as members of the family have told him, including his mother. He admitted having told five men that he was over sixteen, and to some of them he said he was seventeen years of age. Those men testified that he told them his age, some said he gave it at sixteen and some at seventeen. This was several months before the date of his trial. That was substantially all the evidence as to his age. The trial judge then stated: 'Gentlemen, I'm going to find and so hold that the defendant, in the judgment of this court, is sixteen years old or older, and was at the time of the alleged crime'. Defendant excepted. Thereupon the following occurred:

'Mr. Young: We reserve an exception and make a motion for continuance on this ground: The defendant has been confined in jail in some other county away from here and Mr. Redden and I were appointed as attorneys to defend him and have had no opportunity to discuss any facts about the case with him until this morning. We didn't know how old he was and had no opportunity to go back to where he came from to seek testimony as to his true and correct age and we feel that in justice such opportunity should be given. We respectfully ask that the case be continued. We couldn't do it before because we didn't know where he was from, the name of his father and mother, nor any of the facts concerning his age.

'Mr. Strawbridge (representing the State): Your Honor, I'd like to say--Hershel (Smith, the sheriff) did you ask them about bringing him back anytime they wanted to see him you would bring him back?

'Mr. Smith (the sheriff): Yes, I told them that.

'Mr. Strawbridge: We certainly want to resist a continuance. They've had opportunity to prepare their case, but to come at this late hour in the day--this is a crime of grave importance. We've gone as far as to bring the jurors here and the jury is selected. We insist on going to trial.

'Mr. Redden: We don't deny it's a serious crime, but when we take an oath as attorneys we take an oath that when called upon by the court we'll do our best to defend the client. We didn't seek this case. The court appointed us, and we feel as honest, conscientious lawyers we should give him fair representation. We haven't seen him. We didn't know he had been moved until Sunday afternoon. They left here with him the day after the alleged commission of the crime and he was carried to Eutaw, Alabama. We had no opportunity to see him or prepare a defense for him if he had one; we had no opportunity to do what we'd do for a client if we were employed by that client to defend him. We didn't know whether he was under age or not; whether he was guilty or not guilty. The only way we could ascertain facts by which we could represent him fairly was this morning after eight o'clock, when we first saw him. If he's under sixteen, the lawmakers in their wisdom have said he must be tried by a juvenile court; if he's over sixteen he's in the right court before a jury of his peers. If he's under sixteen he should have an opportunity to prove it. We have nothing but his word. He tells the court that he was informed by his father and mother that he was born on June 13, 1936, and no one can say but that he told the truth on that witness stand.

'Mr. Strawbridge: The State has done everything to co-operate in this case. It's a serious case for this lady out there. She had no warning that night she was attacked. The people have been nice about this thing and are willing for the court to try the case but if the case is drug out, we seriously want to insist on a trial at this time.

'The Court: You, as practicing attorneys, and I, as a practicing attorney, know that these lawyers are placed at a disadvantage, and also realize this is a very serious case for the defendant and for the assaulted party, and for Lamar County. I'd like to say this: I think the people of Lamar County are too good a class of people to do anything wrong about the case. We took the boy out of the county for fear some hot-headed people might go haywire. I'm going to put him to trial but with some serious misgivings.

'Mr. Young: We except to the overruling of our motion.

'Mr. Strawbridge: I'd like to put Mr. Smith on the stand so he can state under oath as to his effort at co-operation. I think the State is entitled to that under your honor's ruling.

'The Court: Well, I overruled the motion.'

After the trial and conviction of defendant a motion for a new trial was made June 16, 1952 and denied on June 18, 1952,--all within thirty days after his conviction. In said motion there is no ground asserted that counsel did not have sufficient time to prepare his defense. He was indicted April 21, 1952, his counsel appointed and appeared for him on his arraignment on April 22, 1952. He was then carried to another county for safe-keeping with the assurance to counsel by the sheriff that he would be returned for consultation whenever they asked for it. There was no such request made. He was returned for his trial on May 19, 1952, when his counsel had full opportunity to consult with him. From the date of his trial to the court's action on the motion (May 19th to June 18th) nothing was discovered which would have aided in the defense. We have no assurance a continuance would have resulted in any benefit in the discovery of defensive matter. We also observe in this connection that the record contains evidence of efficient and able defense made on the trial of his case. The court accorded him a fair trial, and there is no indication that another trial would have had a different result.

A ground of the motion for a new trial renewed the claim that defendant was not sixteen years old at the time of his trial. The important date on such a claim is the time of the trial, not that of the crime. Lane v. State, 20 Ala.App. 192, 101 So. 521, certiorari denied, Ex parte Lane, 211 Ala. 615, 101 So. 522; Keenum v. State, 25 Ala.App. 359, 146 So. 623; Brown v. State, 247 Ala. 288, 24 So.2d 223. On the hearing of the motion it does not appear that any proof was offered as to his age--though defendant and his counsel had sufficient time to secure further evidence of it, if they could do so. At the time of hearing the motion for a new trial, he had reached and passed the age of sixteen years according to his own testimony.

When a defendant comes up for trial, if he is over sixteen years of age and not over eighteen, it is within the sound discretion of the court as to whether he shall be put upon trial or transferred to the juvenile court under section 363, supra. Brown v. State, supra; Powell v. State, 224 Ala. 540, 141 So. 201; Lane v. State, supra.

The court having found that defendant was over sixteen years of age at the time of his trial, and evidently under eighteen he had the right in his discretion to put him on trial at the time. Upon a consideration of the evidence which was before the trial court, it is clear to us that his finding was well based, and we cannot say that the court in putting the defendant on trial and in not continuing the trial to a later day, abused his discretion. We cannot therefore predicate a reversal upon that status of the record. Avery v. State, 237 Ala. 616, 188 So. 391, affirmed 308 U.S. 444, 60 S.Ct. 321, 84 L.Ed. 377.

The record shows the following occurred during the progress of the argument of the State's counsel to the jury:

'(During the course of Mr. Downing's argument to the jury the following occurred [for the State]):

'Mr. Redden: Your Honor, we object to the statement by Mr. Downing that the defendant put no testimony on the stand.

'The Court: Sustained.

'Mr. Redden: Move that the court exclude from the jury his argument about defendant not testifying.

'The Court: Yes, gentlemen, don't consider any argument made as to the failure or refusal of the defendant to testify, or any witness in his behalf.

'(At the conclusion of Mr. Downing's argument the following ensued:)

'Mr. Young: Your Honor, we are ready for Your Honor to charge the jury.'

We emphasize that the record shows the court sustained the objection of defendant's counsel and complied with his request with respect to the solicitor's argument and directed the jury not to consider any argument as to the failure or refusal of the defendant to testify or any witness in his behalf.

We also observe that while there was a motion...