Denton v. State
Decision Date | 15 September 1955 |
Docket Number | 1 Div. 613 |
Parties | Albert Sidney DENTON v. STATE of Alabama. |
Court | Alabama 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.
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:
'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:
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.
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:
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:
'
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. * * *
* * *
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'* * * 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 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,...
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Sprinkle v. State
...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......
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