Denton v. State

Decision Date15 September 1955
Docket Number1 Div. 613
PartiesAlbert Sidney DENTON v. STATE of Alabama.
CourtAlabama Supreme Court

Albert Boutwell, Birmingham, and Geo. C. Hawkins, Gadsden, for appellant.

John Patterson, Atty. Gen., and J. Noel Baker, Asst. Atty. Gen., for the State.

MERRILL, Justice.

Albert Sidney Denton was tried and found guilty in Baldwin County under an indictment for murder in the first degree which charged that he killed Leroy E. Miller by shooting him with a pistol. He was found guilty and sentenced to life imprisonment in the penitentiary and from the judgment imposing that sentence, he appeals.

After the introduction of numerous witnesses, the state rested, and defendant moved to exclude all the evidence on the grounds that the state had failed to establish venue, had failed to show that the court had jurisdiction or had failed to show where the offense occurred. The motion was denied and this action by the trial court is the basis of the argument made in brief by appellant in this court.

The case of Britton v. State, 15 Ala.App. 584, 74 So. 721, 722, is directly in point; there the court said:

'After the prosecution had offered the evidence in chief and rested, the defendant made a motion to exclude the evidence on the ground, among others, that the venue had not been proven. This motion was appropriate and timely and presents the question sought to be raised. Taylor v. State, 72 So. 557; Randolph v. State, 100 Ala. 139, 14 So. 792.

'Proof of venue is jurisdictional and without such proof a conviction cannot be sustained. Code 1907, § 7140; Randolph v. State, supra. While proof of venue is essential to a conviction, it, like any other fact in the case, may be established by circumstantial evidence; and when the state offers evidence tending to show that the crime was committed within the jurisdiction of the court, the question becomes one for the jury. Pounds v. State, 73 So. 127; Powell v. State, 5 Ala.App. 75, 59 So. 530.

'And, though it be conceded that no such evidence was offered by the prosecution in chief, and that the motion was erroneously overruled, injury resulting therefrom was averted by the evidence subsequently offered. * * *.'

In citing the Britton case, supra, we do not agree with the sentence therein, 'Proof of venue is jurisdictional and without such proof a conviction cannot be sustained.' Long before the adoption of Circuit Court Rule 35 on June 23, 1913, 175 Ala. XXI, this court had held that failure to prove venue was not reversible error where no charge based on the sufficiency of the evidence was requested or given. In Hubbard v. State, 1882, 72 Ala. 164, this court speaking through Chief Justice Brickell said:

'* * * If there had been an instruction given or refused, involving an inquiry into the sufficiency of the evidence to authorize a conviction, the omission of evidence of the venue would have compelled a reversal of the judgment of conviction, in obedience to the authorities we have cited. But no such instruction having been given or refused, this court can not now interfere. It does not lie within our province to grant new trials, in cases civil or criminal, because the verdict and judgment may not appear affirmatively to be supported by the evidence.'

Also, this court said in Watts v. State, 1920, 204 Ala. 372, 86 So. 70:

'The defendant was convicted of murder in the first degree, and the death penalty was imposed.

'The question of the sufficiency of the evidence showing the venue of the crime to have been in Chambers county was not raised by appropriate instruction, requested or given, to the jury. When no instruction is given or refused, involving an inquiry into the sufficiency of the evidence to authorize a conviction, or as to the proof of venue, the failure of the bill of exceptions to show the venue was proved, while it sets out substantially all the evidence, will not work a reversal of the judgment; no compliance with circuit court rule 35 (175 Ala. xxi) being shown. Woodson v. State, 170 Ala. 87, 54 So. 191; Dentler v. State, 112 Ala. 70, 75, 20 So. 592; Hubbard v. State, 72 Ala. 164, 169; Justice v. State, 99 Ala. 180, 13 So. 658; Johnson v. State, 100 Ala. 55, 14 So. 627; Bowdon v. State, 91 Ala. 61, 8 So. 694; Ex parte Knight, 61 Ala. 482.'

State's witness Jones had testified that defendant told him in Jacksonville, Florida, after the remains of deceased's body had been discovered in Mobile County: 'You remember my former buddy Hardin? I bumped off one of his friends for him in Bay Minette--near Bay Minette.'

Moreover, defense witness Heflin testified on direct, that he was present when Miller had been killed at a private airport in Baldwin County and the following is from his cross-examination:

'Q. You tell the jury that Lee Miller was shot to death at Oaks Airport in Baldwin County?

'A. Yes, sir.'

These facts and other inferences from the state's evidence made the question of venue one for the jury, and bring this case squarely in line with the rule of the Britton case, supra. Furthermore, there was ample evidence from which the jury could find beyond a reasonable doubt that there was a conspiracy to murder Miller and that part if not all of the acts constituting the offense occurred in Baldwin County even though the skeleton and clothing of deceased were found in Mobile County. Section 94, Title 15, Code of 1940 provides:

'When an offense is committed partly in one county and partly in another, or the acts, or effects thereof, constituting, or requisite to the consummation of the offense occur in two or more counties the jurisdiction is in either county.'

The trial judge charged the jury as to the question of venue including the effect of § 94, supra.

Prior to the taking of testimony, appellant moved for a change of venue. The bases for the motion were five affidavits that due to the unusual amount of newspaper publicity which pictured Denton as a gangster who had been connected with dangerous and notorious criminals, Denton could not receive a fair and impartial trial in Baldwin County; and that the chief topic of conversation in the county was that Denton would be tried on March 25, 1954. Four newspaper articles were attached to the motion as exhibits.

The following extracts from Campbell v. State, 257 Ala. 322, 58 So.2d 623, 625, are dispositive of this question:

'II. There was no error in overruling the motion for change of venue. The defendant on such a motion has the burden of showing to the reasonable satisfaction of the court that a fair and impartial trial cannot be had and an unbiased verdict cannot reasonably by expected. Godau v. State, 179 Ala. 27, 60 So. 908; Patton v. State, 246 Ala. 639, 21 So.2d 844. * * *

* * *

* * *

'* * * In Godau v. State, 179 Ala. 27, 60 So. 908, 910, it was said:

"So long as we have newspapers we may expect to have through them the report of crimes, and it is not to be unexpected that, when a homicide is committed * * * the newspapers of the community, answering the public interest, will furnish the defendant with at least some material upon which to base an application similar to the one under discussion.'

* * *

* * *

'The mere belief of the defendant or of his witnesses that he cannot receive an impartial trial is not sufficient to entitle him to a change of venue. Patton v. State, supra; Lee v. State, 246 Ala. 343, 20 So.2d 471, certiorari denied 325 U.S. 888, 65 S.Ct. 1576, 89 L.Ed. 2002.'

The motion for a change of venue was properly denied.

Among the grounds in the motion for a new trial were that the verdict was contrary to the evidence, the weight of the great preponderance of the evidence and that the defendant was entitled to the affirmative charge with hypothesis.

The record in this case unfolds a bizarre story. The deceased, Leroy Miller, a former Wyoming cowboy, operated the Lyn-mar Fishing Lodge on Bon Secour River near Gulf Shores with his wife. He appeared to be a man of considerable means, owning a yacht, an airplane and several large automobiles. Muller and Nelson K. Hamilton, a Foley photographer, were partners in a gold-mining business in Mexico. They were both in Mexico from April to August 1952 and met the defendant Denton there in June. Denton was using the alias of Jimmy Montgomery. He returned to Mexico in July with Lurton L. Heflin and the two spent about ten days there. In early August Miller was shot in the arm and a bone was broken, necessitating the wearing of a cast. On August 15th, around noon, Miller and Hamilton arrived back in Foley. About 5:30 that afternoon and again about 9:00 o'clock that night, Miller received telephone calls at his home. It later developed that Heflin made these calls and made arrangements to pick up Miller later that night. At 6:00 o'clock, Miller's wife, Thompson and his wife and two other couples left to go to the dog races at Pensacola. Sometime after 9:00, Miller's daughter, her husband and Miller's mother and stepfather,...

To continue reading

Request your trial
19 cases
  • Sprinkle v. State
    • United States
    • Alabama Court of Criminal Appeals
    • 21 March 1978
    ...in this case fails to establish that the defendant could not receive a fair and impartial trial in Baldwin County. Denton v. State, 263 Ala. 311, 82 So.2d 406 (1955). Without indulging any presumption in favor of the ruling of the trial court on the motion. Malloy v. State, 209 Ala. 219, 96......
  • Lokos v. State
    • United States
    • Alabama Supreme Court
    • 18 November 1965
    ...court in overruling the motion for a change of venue. Campbell v. State, 257 Ala. 322, 58 So.2d 623, and cases cited; Denton v. State, 263 Ala. 311, 82 So.2d 406. On February 14, 1964, the day on which counsel for the appellant moved the trial court to appoint "three reputable specialist pr......
  • Tiner v. State
    • United States
    • Alabama Supreme Court
    • 14 July 1960
    ...of the court that a fair and impartial trial cannot be had and an unbiased verdict cannot reasonably be expected. Denton v. State, 263 Ala. 311, 82 So.2d 406; Campbell v. State, 257 Ala. 322, 58 So.2d 623; Maund v. State, 254 Ala. 452, 48 So.2d 553; Ala. Digest, Criminal Law, Evidence offer......
  • Mathis v. State
    • United States
    • Alabama Supreme Court
    • 14 July 1966
    ...jury.' Publicity by the press, radio and television does not necessarily constitute ground for a change of venue. See: Denton v. State,263 Ala. 311, 314--315, 82 So.2d 406; Campbell v. State, 257 Ala. 322, 324--325, 58 So.2d 623; Littlefield v. State, 36 Ala.App. 507, 510, 63 So.2d 565, cer......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT