Fuller v. State

• Decision Date: 22 April 1958
• Docket Number: 4 Div. 285
• Citation: 40 Ala.App. 297,115 So.2d 110
• Parties: Albert F. FULLER v. STATE.
• Court: Alabama Court of Appeals

Page 110

115 So.2d 110

40 Ala.App. 297

Albert F. FULLER v. STATE.

4 Div. 285.

Court of Appeals of Alabama.

April 22, 1958.

Rehearing Denied May 13, 1958.

Jos. W. Smith, Smith & Smith and J. Pelham Ferrell, Phenix City, for appellant.

John Patterson, Atty. Gen., and Edmon L. Rinehart, Asst. Atty. Gen., for the State.

CATES, Judge.

Fuller is here on appeal from a judgment of conviction in the Russell Circuit Court on an indictment charging him with accepting a bribe to permit the operation of a house of prostitution known as Cliff's Fish Camp. The trial judge sentenced him to seven years' imprisonment in the penitentiary. The facts produced by the State tended to show that Ralph Mathews was the Sheriff of Russell County for a term beginning January, 1951, and that Fuller was his chief deputy.

The testimony of a number of the girls who described themselves as entertainers at Cliff's Fish Camp ran in a similar pattern to the effect that Cliff Entrekin, the entrepreneur of the establishment, took out ten per cent of the girls' share of the earnings, and he, in turn, every Monday would pay Fuller an amount equal to roughly one-third of the total revenue involved from prostitution.

One of the girls testified that she went with Entrekin and carried an envelope with some $600, which was dropped in the mail box at Fuller's garage apartment (owned by Sheriff Mathews) near the hospital in Phenix City. The same witness also testified that she saw Fuller receive an envelope with money placed in it by Entrekin about ten times on various visits by Fuller to the Fush Camp.

To show that Fuller was aware of the activities, there was testimony by one prostitute tending to show that on one occasion at the county jail Fuller indicated that the girls had nothing to worry about in the way of raids on the establishment. There was further testimony of Fuller leading raids, but all of the prostitutes would take to the woods, so that the party would report to the high sheriff that they could find no illegal activities.

Fuller took the stand in his own defense and was asked if he had ever on any occasion received any money from Cliff Entrekin, coupled with an agreement not to enforce the law. His answer was, 'no sir, not one cent.' The only other testimony for the defense was that of the sheriff who testified to the fact that Fuller's apartment had no mail box, for the reason that Mr. and Mrs. Fuller used the mail box of the Mathews.

Both the defendant and the State in briefs have treated mainly questions going to the circumstances surrounding the indictment, the sending of Hon. Walter B. Jones of the Fifteenth Judicial Circuit to act as a circuit judge for the Circuit Court of Russell County, the purging (at his instigation) of the jury rolls of Russell County, and a proclamation of the then Governor. This proclamation reads as follows:

'Whereas, organized crime has for many years existed in Russell County, Alabama, particularly in Phenix City; and

'Whereas, a gang of men have conspired and are conspiring to thrive on the systematic exploitation of vice; and

'Whereas, the organized lawless activities of this gang continue to hamper the investigation of the murder and the ferreting out of the murderer of Albert Patterson and other crimes; and

'Whereas, there exists in said community a serious emergency, a defiance of the Constitution and laws of Alabama, a state of lawlessness, breach of the peace, organized intimidation and fear, and there is continued and imminent danger thereof, which the local peace officers are unable or unwilling to subdue:

'Now, Therefore, I, Gordon Persons, as Governor of Alabama and Commander in Chief of the Alabama National Guard, do hereby proclaim a state of qualified martial rule in Russell County, Alabama.

'I further instruct the Adjutant General of Alabama, now actively on Duty with units of the Alabama National Guard in Russell County, to take over, assume, supersede and exercise all the activities of the Sheriff of Russell County, Alabama, the deputy sheriffs of said county, constables, Chief of police of Phenix City, Alabama, and all police officers of said city, and until further order from me to take and continue to take appropriate measures to suppress the state of lawlessness, intimidation, tumult and fear which reigns in said area.

'In Witness Whereof, I have hereunto set my hand and have caused the Great Seal of the State of Alabama to be affixed by the Secretary of State, at the Capitol in the City of Montgomery, on this the 22nd day of July, 1954.

'/s/ Gordon Persons

Governor of Alabama and Commander in Chief of The Alabama National Guard.

'Attest:

/s/ Mrs. Agnes Baggett Secretary of Stat.'

The defects of the Chief Justice sending Judge Jones and the proclamation of 'qualified military rule' by Governor Persons were sought to be reserved for our consideration by virtue of a document which appears in the record immediately after the qualification of the array of jurors for the week of the trial. This document was entitled 'Defendant's Objections to Being Put to Trial.'

It is a familiar rule that the substance of the plea (and, of course, the motion) is the clue to its character and not necessarily the wording of its caption and the like (Code 1940, T. 15, § 282). This instrument stated that the defendant objects to being placed on trial 'at this time and in this presence,' and assigned thereto are some 112 grounds as supporting the objection, separately and severally.

As to authority of the Chief Justice of Alabama, he is more than a mere judge; he is the chief officer of the Judicial Department and has a commission which requires him to see that the business of all the courts is done promptly, and the cases are not permitted to become congested and delayed, and, in addition, he has the humane office of 'Commissioner of Gaol Delivery,' IV Blackstone Commentaries 270. Code 1940, T. 13, § 38, reads:

'The chief justice shall see that the business of the several courts of the counties is attended to with proper dispatch, and that the cases, civil and criminal, are not permitted to become congested or delayed, and he shall take care that prisoners are not allowed to remain in the jails without a prompt trial.'

He has also the express power, 'Whenever the public good requires more judges than are regularly provided by law for the holding' of court, to send one or more judges from another circuit. § 42, Ibid.

This record shows that the Russell Circuit Court was faced with a large number of indictments rendered at the special term of the grand jury at which Fuller was indicted.

Thus, we conclude that there was no error in the sending of the Hon. Walter B. Jones to act as a circuit judge in Russell County.

If we be mistaken in this, certainly we feel the defendant has not properly raised this alleged ultra vires act of the Chief Justice in a proper manner, in that, if he had been without jurisdiction, the writ of prohibition would have been the appropriate remedy to test his objection to the advent of Judge Jones.

The defendant failed to offer proof with respect to the allegations contained in his 'objections'; and, accordingly, we consider ourselves precluded from going into the power of the Governot, particularly under Section 27 of the Constitution, to supersede the sheriff and other law enforcement officers of the county. Wharton, Criminal Law and Procedure, § 1849, states what we conceive to be the correct principle as follows:

'Any motion or plea, * * * which is based on allegations of facts not appearing on the record must, when controverted by the prosecution, be supported by evidence on the part of the defendant * * *.'

Mr. Justice Stakely, in Reeves v. State, 264 Ala. 476, 88 So.2d 561, 564, wrote:

'In Alabama there are certain statutory regulations with reference to objections to an indictment. In §§ 278, 279 and 286, Title 15, Code of 1940, there are provisions setting forth the method of attacking an indictment. Section 278 provides that the proper method is by plea in abatement. Section 279 provides that in all cases such a plea in abatement must be filed before the plea to the merits. The same is true in section 286. In Clark v. State, 239 Ala. 380, 195 So. 260, it is shown that under the procedural law of this state pleas in abatement must be filed before pleading to the merits or in bar and it is only where the court in its discretion allows pleas to the merits to be withdrawn that pleas in abatement can be filed. The principle here referred to was recently dealt with by the Supreme Court of the United States in Michel v. State of Louisiana, 350 U.S. 91, 76 S.Ct. 158, 100 L.Ed. 83. * * *'

Nor do we find anything in Staub v. City of Baxley, 355 U.S. 313, 78 S.Ct. 277, 2 L.Ed.2d 302, which makes our indigenous procedure, which has some common law warrant, a violation of due process, certainly in the historical sense.

Fuller was indicted October 8, 1954, and was not brought to trial until November 15. He was not shut off from an adequate time to take action against the indictment or the formation of the grand jury before his plea of not guilty. Thus, we do not have the choking off of an opportunity to raise substantial issues as was condemned in Reece v. State of Georgia, 350 U.S. 85, 76 S.Ct. 167, 100 L.Ed. 77: rather, we have an instance of ample opportunity--more so than the possible mere three days' minimum apporved by the majority in Michel v. State of Louisiana, 350 U.S. 91, 76 S.Ct. 158, 100 L.Ed. 83, a capital case.

We scrupulously refrain from approving or disapproving the proclamation of Governor Persons of his so-called qualified martial rule.

It is to be pointed out at the outset of this enquiry that the record before us shows that the indictment was filed in open court on the 8th day of October, 1954. The record is silent as to the removal of Sheriff Mathews from office, except that a certificate appears in the record showing that the circuit...