Divine v. State
| Decision Date | 10 March 1966 |
| Docket Number | 4 Div. 217 |
| Parties | Allen DIVINE v. STATE of Alabama. |
| Court | Alabama Supreme Court |
B. B. Rowe, Enterprise, and Robt. E. Cannon, Elba, for appellant.
Richmond M. Flowers, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State.
From conviction and sentence of death for murder in the first degree, defendant appeals. We affirm.
Briefly, the evidence indicates that on the day of the killing, a paper denominated, on its 'BACK,' a 'Peace Warrant,' had been issued by a justice of the peace. The paper recites that any lawful officer of Coffee County is commanded to arrest defendant and bring him before the justice of the peace who issued the paper. A police officer, in execution of the command, went with defendant's father and a deputy sheriff in an automobile to the house where defendant lived with his father. When the police officer got out of the automobile and walked four or five or six feet toward the house, defendant shot the police officer with a shotgun, whereof he died.
As enjoined by statute, we have carefully examined record and transcript. § 389, Title 15, Code 1940; Act No. 249, approved June 24, 1943, 1943 Acts, page 217; § § 382(1)--382(13), Title 15, 1958 Recompilation Code 1940. This examination indicates that appellant's counsel have argued in brief all points that should be considered and discussion will be directed to those points.
Defendant argues that the court erred in overruling his motion for change of venue. Defendant says the court abused its discretion in this ruling because of widespread publicity given to the killing and because steps had been taken and publicized to establish a 'Memorial Fund' for the slain officer.
On hearing of motion for change of venue, the owner of a local radio station testified that everything he had heard inclined to say that defendant was guilty; that, at the present time, the witness did not hear any expression of ill will toward defendant; that, to the knowledge of witness, there was no feeling about the case in town at the time of the hearing; and that witness, being lately come to Coffee County, did not feel qualified to say whether defendant could get a fair trial in the Elba Division of that county.
The business manager of the local paper testified that he believed defendant would receive a fair trial in Coffee County. In addition to the testimony of these two witnesses, defendant offered as exhibits, certain newspaper articles describing the shooting, the 'Memorial Fund,' and the funeral. As we understand the record, no other evidence was offered at the hearing on the motion.
On motion for change of venue in a criminal case, defendant 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 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; Tiner v. State, 271 Ala. 254, 122 So.2d 738.
We are of opinion that defendant did not support the burden of proving his motion and that change of venue was denied without error.
On behalf of defendant, his attorneys filed a petition praying that the trial judge 'institute a careful investigation, call a responsible physician and other creditable witnesses,' and, if deemed necessary, a jury; and, if upon such investigation the judge have reasonable grounds to believe that defendant was insane at the time of the offense, or is presently insane, that the judge place defendant in custody of the Superintendent of Alabama state Hospital for examination by a lunacy commission. See § § 425, 428, Title 15, Code 1940.
The court appointed two practicing physicians of Elba to examine defendant and set a day for hearing the defendant. Dr. Kimmey testified, among other things, that, in his opinion, defendant was not suffering from a disease of the mind and that, to the witness, from his contact with defendant he 'seems perfectly sound of mind and sane.' Dr. Cooper testified that he had seen defendant for the first time on the morning of the hearing, and that 'on interview this morning,' the witness would say defendant 'is sane.'
The court denied defendant's petition that he be committed to the insane hospital for observation and examination and defendant says the court abused its discretion in denying the petition.
The court is under no duty to appoint a lunacy commission or to procure a report of the Superintendent of the Alabama State, Hospital under § 425, Title 15, Code 1940. The court has simply the right to seek these aids for advisory purposes when the court, in its discretion, thinks such aids will be helpful. Lokos v. State, 278 Ala. 586, 179 So.2d 714, 718, and authorities there cited.
Reversible error...
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...State, 251 Ala. 441, 37 So.2d 753; Pugh v. State, 247 Ala. 535, 25 So.2d 417; Green v. State, 252 Ala. 513, 41 So.2d 566; Divine v. State, 279 Ala. 291, 184 So.2d 628. A review of the record discloses no abuse of discretion on the part of the trial court in denying the motions or requests f......
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