Ex parte Lancaster

• Decision Date: 21 April 1921
• Docket Number: 6 Div. 400
• Citation: 89 So. 721,206 Ala. 60
• Parties: Ex parte LANCASTER.
• Court: Alabama Supreme Court

89 So. 721

206 Ala. 60

Ex parte LANCASTER.

6 Div. 400

Supreme Court of Alabama

April 21, 1921

Rehearing Denied May 12, 1921

Petition by Robert J. Lancaster for writ of prohibition to be directed to Judges T.L. Sowell and J.J. Curtis to restrain them as such circuit judges of the circuit court of Walker county from putting him on trial in said county on an indictment charging murder in the first degree, a similar indictment having been previously returned and the cause transferred from Walker county to Marion county, Ala. Writ granted, and all papers ordered returnable to Marion circuit court.

Foster Verner & Rice and Harwood, McKinley, McQueen & Aldridge, all of Tuscaloosa, L.D. Gray, of Jasper, A.H. Carmichael, of Tuscumbia, E.B. & K.B. Fite, of Hamilton, and Chas. E. Rice of Birmingham, for petitioner.

Harwell G. Davis, Atty. Gen., and Horace C. Wilkinson, Sp. Asst Atty. Gen., and J.M. Pennington, Sol., and W.C. Davis, both of Jasper, opposed.

MILLER J.

This is a petition for writ of prohibition filed by Robert Lancaster to prevent the judges of the circuit court of Walker county from putting him on trial in that county on a certain indictment charging him with murder in the first degree.

On the night of January 13, 1921, Will Baird was forcibly taken from the jail of Walker county and killed. The petitioner was, on the 19th of January, 1921, arrested under warrant charging him with the offense of unlawfully and with malice aforethought killing said Will Baird in Walker county. On the same day the grand jury of the circuit court of Walker county returned an indictment into said court, charging petitioner with said offense in the form of murder in the first degree.

On January 21, 1921, the petitioner-defendant in said case by his attorneys filed in writing in said circuit court an application for and "moves the court to grant him a change of venue, and that this court make an order removing the trial of the above stated cause from Walker county, Ala to some other county in the state of Alabama, which is free from exception." This application set forth specifically the reasons why he could not have a fair and impartial trial in the county in which the indictment was found. It was signed by his attorneys, and it was verified by the affidavit of L.D. Gray, one of his attorneys. In the minutes of the court of January 21, 1921, we find on ruling on this application the following:

"On the hearing of the petition in this case for change of venue, come the state of Alabama by its solicitors and the defendant by his attorneys and the solicitors stating in open court that the application for a change of venue will not be resisted. *** It is therefore the order and judgment of the court that the motion be granted and the case is removed to the county of Marion and state of Alabama for trial."

The petitioner was tried on that charge under an indictment on the 1st day of February, 1921, in the circuit court of Marion county, Ala. The jury could not agree in the case and a mistrial was entered on February 7, 1921. On the 22d day of February, 1921, an order of nolle prosequi in said case was made in the circuit court of Marion county, and on the same day a similar order was made in the circuit court of Walker county. The defendant, Robert Lancaster, was immediately arrested under affidavit and warrant charging him with the same offense as was alleged in the said indictment. On February 25, 1921, the grand jury of Walker county, Ala., returned into the circuit court another indictment against the petitioner, charging him with the same offense, murder in the first degree. This second indictment charged the same offense, the same degree of the offense, as the first indictment. To all legal intents and purposes it was an exact copy of the first indictment, the only practical difference being one was filed in the circuit court of Walker County on February 25, 1921, and the other on January 19, 1921. The same grand jury found and returned both true bills. The defendant is now under arrest and in prison under the last indictment.

The record shows that the deceased, Will Baird, was killed in Walker county, Ala., on January 13, 1921.

The county of Walker had jurisdiction of the offense. The circuit court of that county had exclusive jurisdiction. If he was killed unlawfully the grand jury of that county alone could indict the person charged with the offense. There may be a change of venue for his trial, but there can be no change of venue for a grand jury to investigate and return a true bill. Sections 6, 8, Const. 1901; sections 7851, 7130, 7140, Code of 1907. "The local jurisdiction of all public offenses, unless it is otherwise provided by law, is in the county in which the offense was committed." Section 7225, Code 1907.

The Constitution of Alabama gives the defendant "in all prosecutions, by an indictment," the right to "a speedy, public trial, by an impartial jury of the county or district in which the offense was committed. Section 6, Const. 1901. When the defendant thinks he cannot secure a fair and impartial trial in the county where the alleged offense is committed and the indictment is found, then he has the right to apply to the court for a change of venue. An application was made in the circuit court of Walker county for a change of venue. The court granted the application, and ordered the trial removed from Walker county to the circuit court of Marion county.

The state contends that this was error. That the order of the circuit court of Walker county, granting the petition for change of venue and removing the trial to the circuit court of Marion county, was null and void, because the Constitution requires the change of venue to be applied for by the defendant; and the statute requires the application for change of venue to be sworn to by the defendant, neither of which, he claims, was done in this case.

Section 6 of the Constitution of 1901, germane to the question, reads:

"The Legislature may, by a general law, provide for a change of venue at the instance of the defendant in all prosecutions by indictment, and such change of venue, on application of the defendant, may be heard and determined without the personal presence of the defendant so applying therefor; provided, that at the time of the application for the change of venue, the defendant is imprisoned in jail or some legal place of confinement."

This does not require the application to be in writing. It does not require it to be verified by affidavit or sworn to by the defendant. It must be made by defendant. This does not require the defendant should personally sign the application nor personally rise up in court and make the motion; he may, but the Constitution does not require it. This same section of the Constitution gives the accused "the right to be heard by himself and counsel, or either." In cases of this kind--charged with a capital offense--the defendant must have counsel, if able to employ one, and if unable to employ one, it is the duty of the court to appoint counsel for him, not exceeding two. Section 7839, Code 1907; Ex parte Bryan, 44 Ala. 402; Slocovitch v. State, 46 Ala. 227.

Section 7851 of the Code of 1907, as amended in Acts 1909, p. 212, reads as follows:

"Change of Venue: Trial Removed on Defendant's Application, etc.--Any person charged with an indictable offense may have his trial removed to another county, on making application to the court, setting forth specifically the reasons why he cannot have a fair and impartial trial in the county in which the indictment is found; which application must be sworn to by him, and must be made as early as practicable before the trial, or may be made after conviction, on new trial being granted. The refusal of such application may, after final judgment, be reviewed and revised on appeal, and the Supreme Court shall reverse and remand or render such judgment on said application, as it may deem right, without any presumption in favor of the judgment of ruling of the lower court on said application. If the defendant is in confinement, the application may be heard and determined without the personal presence of the defendant in court."

There is nothing in this act to prevent the attorneys for defendant in his name making the application. The application in this case is in writing. It is signed by attorneys for the defendant. It is verified by the affidavit of one of his attorneys.

On direct appeal to this court by the defendant in the case of Lewis v. State, 49 Ala. 1, "As the trial was removed from Dallas county, at the instance and on the motion of the defendant, and as the record states that cause for the removal was shown, we will presume it was on affidavit, and that the cause shown was sufficient; we will also presume that Montgomery county was the nearest adjoining county free from exception, as it is so stated in the order. At any rate, it did not lie in defendant's mouth to complain that the order was irregularly made, as it was made at his instance, and in his favor, and without objection on his part; and, besides, it does not appear that he was prejudiced by the alleged irregularity."

See, also, Paris v. State, 36 Ala. 232; Ex parte Rice, 102 Ala. 675, 15 So. 450.

In said case of Lewis v. State, on direct attack on appeal, the order granting change of venue was presumed to be correct, when the minutes of the court recited on motion of defendant and for cause shown the order of removal was granted. The court presumed it was on affidavit, and the cause shown was sufficient; and, "at any rate, it did not lie in defendant's mouth to complain." Lewis v. State, 49 Ala. 1.

The state in this case did not question the sufficiency of the application for change of venue by demu...