Haynes v. State

• Decision Date: 25 November 1958
• Docket Number: 3 Div. 22
• Citation: 109 So.2d 738,40 Ala.App. 106
• Parties: Robert HAYNES v. STATE.
• Court: Alabama Court of Appeals

Page 738

109 So.2d 738

40 Ala.App. 106

Robert HAYNES v. STATE.

3 Div. 22.

Court of Appeals of Alabama.

Nov. 25, 1958.

Rehearing Denied Jan. 6, 1959.

Morris A. Burkett and Arthur J. Reid, Montgomery, for appellant.

John Patterson, Atty. Gen., and Wm. C. Younger, Asst. Atty. Gen., for the State.

PRICE, Judge.

Appellant was convicted on an indictment charging him with receiving, concealing, etc., one Johnson outboard motor, of the value of $465.00, the personal property of J. N. Chisholm, knowing it was stolen and not having the intent to restore it to the owner.

Before the trial defendant moved to quash the indictment upon the grounds that 'it does not affirmatively show that the crime was committed within the three years last passed prior to the indictment' and, 'does not sufficiently describe the property which defendant is alleged to have bought, received, concealed or aided or concealing.'

Under Section 237, Title 15, Code, it is unnecessary to allege that the offense was committed within the preceding three years, it being sufficient to aver that it was committed before the finding of the indictment. See 12 Ala.Dig., Indictment and Information, k87(3) for numerous cases.

The description of the property substantially follows that of the description of the article set out in the Code form of indictment and was sufficient. Title 15, Section 259, Form 91.

Moreover, 'Error cannot be predicated upon the overruling of the motions to quash the indictment; it is a matter of discretion with the trial court whether it will put the defendant to his demurrer or plea in abatement, as the case may be.' Canto v. State, 15 Ala.App. 480, 73 So. 826, 827; Mosely v. State, 1 Ala.App. 108, 56 So. 35; Johnson v. State, 134 Ala. 54, 32 So. 724; Pynes v. State, 207 Ala. 395, 92 So. 663.

Appellant's motion to quash the jury venire on the ground that Mr. John Chisholm, the owner of the property the subject of the indictment, was a witness before the grand jury which returned the indictment and was also summoned to serve on the venire to try appellant was properly overruled.

In support of his motion appellant called as a witness Mr. John R. Matthews, Circuit Clerk of Montgomery County, who testified that Mr. Chisholm was excused from jury duty before the jury was empanelled, because he was over sixty-five and exempt from such duty; that Mr. Chisholm appeared as a witness before the grand jury, but he did not know in what case. Besides, no fraud in drawing or summoning the jurors was alleged. Title 30, Section 46, Code 1940; Burns v. State, 246 Ala. 135, 19 So.2d 450; Beatty v. State, 36 Ala.App. 699, 63 So.2d 287.

Appellant's motion for a change of venue was denied. The grounds of motion were that he could not receive a fair trial in Montgomery County because of the recent newspaper and television publicity given the charges against him. In support of the motion for a change of venue appellant introduced newspaper articles. These exhibits appear in the record. They refer to appellant, identified as a turkey farmer and part time Sunday School teacher, as a member of a 'ring' consisting of teen-agers involved in various burglaries and adults who were acting as 'fences' for the stolen property.

Appellant introduced Mr. G. E. Maxwell, who testified that what he remembered about the newspaper articles was that appellant had been arrested and that he was a turkey raiser and Sunday School teacher. On cross examination he testified he was a practicing attorney from Tennessee and that he did not believe the fact that a person was a part time Sunday School teacher and a turkey raiser would affect his being given a fair trial.

Mr. O. H. McIntyre testified the articles would influence his thinking toward a case; that if he had not known defendant personally the fact that he was a Sunday School teacher and supposed to be a leader of young people, and yet was implicated in causing those young people to go astray, would prejudice his verdict if he were a juror.

Mr. J. A. Godwin testified he read the articles; that the papers wrote it pretty heavy; that it would be hard for him to give defendant a fair trial after reading the articles; that if he were under oath to give appellant a fair trial he would have to do so.

Defendant introduced eight affidavits, all in the same language, which stated, in effect, that each affiant had read the newspaper articles and that 'The emphasis was of such degree and intensity that his business and name should be materially affected,' and that 'It appeared to me as if the newspapers were trying to place Robert E. Haynes in an unfavorable light in the community.'

'A change of venue is granted only when it is clearly shown that a fair and impartial trial may not be had in the county in which the indictment is found. Facts and circumstances rendering such a trial improbable must appear. The mere belief of the party applying, or of the witnesses he is enabled to produce, that such trial can not be had will not suffice.' Jackson v. State, 104 Ala. 1, 16 So. 523, 524. The burden is on defendant to prove to the reasonable satisfaction of the court that a fair and impartial trial could not be reasonably expected. Baker v. State, 209 Ala. 142, 95 So. 467. In our opinion the defendant failed to meet this burden. Maund v. State, 254 Ala. 452, 48 So.2d 553, and cases there cited.

Defendant made two motions for a continuance, which were overruled. One of the motions was based on the same grounds as the motion for a change of venue, that he could not have a fair trial because of the recent publicity given him. The other motion was on the ground that only twelve days had elapsed since the return of the indictment, which was insufficient time to prepare his defense.

The granting or refusing of a motion for continuance is largely within the sound discretion of the trial court and the exercise of such discretion will not be disturbed except for abuse. See 6A Ala.Dig., Criminal Law, k586.

In Walker v. State, 265 Ala. 233, 90 So.2d 221, it was held that the trial court did not abuse its discretion in refusing to grant the motion where the court appointed attorney had ten days in which to prepare the case for trial.

The record shows that the defendant here was arrested on the charge in March, indictment returned on May 18 and trial begun on May 30th. We find no abuse of discretion.

Counsel insists the absence of accused during the hearing on the motion for a change of venue necessitates a reversal of the judgment of conviction.

The record shows the following occurrence during the hearing of the motion prior to actual trial:

'Judge Carter: Do you want the defendant to be in here, I noticed he is not?

'Mr. Reid: That is up to the State; it is immaterial to the defense.

'Mr. Thetford: I don't care whether he is or not--let's wait and let him be in here.

'The Court: I don't think it is necessary, but still it is his case and I think he ought to be in here.'

The second occasion appears in the record as follows:

'The Court: If it is agreed and understood that the defendant does not want to be present when a motion is being tried----

'At this time the defendant returns to the Hearing room.'

In Berness v. State, 263 Ala. 641, 83 So.2d 613, 616, the court said:

'It is fundamental that a defendant has the right to be present at every stage of his trial for the commission of a felony. His presence is in fact essential to the validity of his trial and conviction unless there has been a clear and unequivocal waiver of this right by defendant.' See also Ex parte Bryan, 44 Ala. 402.

It is also well established that 'a criminal defendant in a non-capital felony case may waive his continuous presence at the trial. But this waiver must be of an affirmative and positive nature and made by him personally, as for example when he voluntarily absents himself from the courtroom during the conduct of his trial.' Berness v. State, supra. See also McNutt v. State, 25 Ala.App. 129, 142 So. 773, certiorari denied 225 Ala. 282, 142 So. 774; Jackson v. State, 38 Ala.App. 114, 78 So.2d 665. We are of opinion the defendant waived his right to be present in this instance.

Judge Eugene W. Carter, Circuit Judge of Montgomery County, heard the arguments and ruled on appellant's preliminary motions. The case was tried before special Judge Heirston L. Foster. There appears in the record an agreement between defendant, his attorney and the Solicitor authorizing Mr. Foster to act as special Judge, under the provisions of Section 124, Title 13, Code, and Section 160 of the Constitution.

Counsel insists in brief that appellant was tried by two Judges and that 'In a felony case, after trial has commenced before the duly elected Judge, an agreement for a special Judge to finish the case is ineffective, in the absence of a legal disqualification of the regular Judge, and the statute providing for special Judges to sit is not operative unless the regular Judge is shown to be legally disqualified.'

This contention has no merit. If no objection is raised in the trial court to the authority of a special Judge, selected under the provisions of the Constitution and statute, supra, 'on appeal all possible objections in that connection are deemed to have been waived, and the appellate court must conclusively presume that his selection or appointment was in all respects regular, and in strict compliance with the requirements of law obtaining in the premises.' Roberts v. State, 126 Ala. 74, 28 So. 741, 743, 30 So. 554. See also Riley v. Wilkinson, 247 Ala. 231, 23 So.2d 582.

The State's evidence tended to show that Mr. Chisholm's 25 horsepower motor, of the value of from $300 to $400, was stolen by William Head and Allen Hurt, and sold by them to defendant for $125.00. According to Head and Hurt, before defendant bought the motor they told him it was stolen, and that defendant pulled the tag containing the serial number off the motor. Head also...