Gordon v. State

• Decision Date: 30 June 1927
• Docket Number: 2 Div. 388
• Citation: 22 Ala.App. 214,114 So. 279
• Parties: GORDON v. STATE.
• Court: Alabama Court of Appeals

114 So. 279

22 Ala.App. 214

GORDON v. STATE.

2 Div. 388

Court of Appeals of Alabama

June 30, 1927

Rehearing Denied Nov. 1, 1927

Appeal from Circuit Court, Sumter County; Benj. F. Elmore, Judge.

Willie Clyde Gordon was convicted of murder in the second degree and he appeals. Affirmed.

Thos F. Seale, of Livingston, and Patton & Patton, of Carrollton for appellant.

Charlie C. McCall, Atty. Gen., for the State.

BRICKEN P.J.

The defendant was charged, by indictment, with murder in the first degree, and at the time of this trial in the court below was confined in the county jail under this charge.

Before entering upon the trial, the defendant made an application for a change of venue and sought to have his trial removed to another county. The application was sworn to and was in proper form and specifically set forth numerous reasons why he could not have a fair and impartial trial in the county in which the indictment was found. In support of the application for change of venue, the defendant introduced a large number of affidavits to the effect that affiants believed he could not have a fair and impartial trial in Sumter county. In opposition to the application, the state offered probably an equal number of affidavits of citizens to the effect that from their knowledge of the public sentiment, the affiants were of the opinion and believed that such a trial would be accorded defendant in said county. This matter was thus submitted to the lower court, and, it is evident from the record, was given a full and careful consideration by the court, after which the application was overruled and denied. Appellant duly reserved exception and strenuously insists that this action of the court was reversible error.

Under the existing statute, the appellate courts of this state must review and revise the rulings of the lower court upon questions of this character, and in so doing are to indulge no presumption in favor of the judgment or ruling of the lower court on said application. Code 1923, § 5579. However, before the action of the lower court will be reversed, it must affirmatively appear that error has been committed. As stated in Hawes v. State, 88 Ala. 37, 7 So. 302:

"It is not enough that it may not clearly appear the ruling below was right, or that we, acting as a court of original jurisdiction, would have hesitated to have decided as the primary court has decided, but we must see, and see clearly, that its action was wrong."

After a careful consideration of this question from its every angle and a full and careful reading of the entire record, including all the affidavits submitted on the question as well as the well prepared briefs of able counsel for appellant, we do not conclude that the court committed reversible error in overruling the application for change of venue. We note that the affidavits in support of the application are all based upon alleged discussion of the case and expressions heard relative thereto by the several affiants, and upon this they predicate their belief as stated. It is not contended, nor was there any attempt to show, that any public or other demonstration had been...