Hendry v. State

Decision Date31 March 1927
Docket Number1 Div. 438
Citation112 So. 212,215 Ala. 635
PartiesHENDRY v. STATE.
CourtAlabama Supreme Court

Appeal from Circuit Court, Washington County; Ben D. Turner, Judge.

J.H Hendry, alias Hub Hendry, was convicted of murder in the second degree, and he appeals. Affirmed.

Granade & Granade, of Chatom, for appellant.

Harwell G. Davis, Atty. Gen., and Robert G. Tate, Asst. Atty. Gen for the State.

BOULDIN J.

On application for change of venue, the burden is on the defendant to show to the reasonable satisfaction of the court that an impartial trial and an unbiased verdict cannot reasonably be expected in the county where the alleged offense was committed. Seams v. State, 84 Ala. 410 4 So. 521; Godau v. State, 179 Ala. 27, 60 So. 908; Baker v. State, 209 Ala. 142, 95 So. 467.

We have examined with care the affidavits in support of the application and the counter affidavits offered by the state. Without extended discussion, it is our conclusion the defendant did not bring himself within this rule as often applied in this state. The affidavits for the defendant and for the state, taking facts and opinions disclosed for their relative values, and considering the opportunities of affiant to know the state of the public mind at the time of the trial, it cannot be affirmed there was any unusual excitement, or aroused feeling that would tend to create a moral duress upon the minds of jurors, or disqualify them from bias to hear and try the case upon the evidence under their oaths.

The news items in the Washington County News, a newspaper under the control of the prosecuting counsel, were customary reports of the results of the preliminary trial and application for bail, free from denunciation or expressed opinion, giving a very brief summary of the evidence on both sides with apparent impartiality. The tentative impression which the intelligent citizen gets from newspaper accounts of alleged crime and of preliminary proceedings in the courts cannot be made per se the basis of a change of venue. Otherwise, in this day of publicity, the competent reading jurors of the entire state or even of the nation, might become disqualified.

The affidavits of Mississippi witnesses for defendant, expressing fear to come into Washington county to give testimony, not regarded by the trial court of controlling importance, will now be viewed in the light of the fact that two of them, within ten days thereafter, did appear and give evidence on the trial.

It is not apparent, taking the evidence as a whole, that defendant's activity in behalf of law enforcement, and the alleged connection of deceased with wild-catting or boot-legging led to such prejudice or bias affecting the qualified jurors of the county, as would or did deprive defendant of a competent unbiased jury.

In the voir dire examination of a juror as to his qualifications (Code, § 8645), it is proper for the court to inquire whether he has been indicted within the last twelve months for a felony or an offense of the same character as that with which the defendant is charged. Code, § 8610, subd. 3. The withdrawal of such question, upon objection by defendant, with the remark, "I think that is a proper question, but I don't want any question about it," was without error.

In making up the jury roll by the jury commission, no person must be selected who is over 65 years of age. Code, § 8603. When two citizens of the same name and occupation reside in the same precinct, one over and the other within the age limit, and the name is drawn, without identifying data as between the two, the summons is properly served upon the one within the age limit. The jury commission is presumed to have followed the directions of the statute.

Evidence that deceased and Grandquest owned and operated a still, or that deceased was a bootlegger, was properly rejected. That distinct offenses are, as a rule, inadmissible is elementary. The proposed evidence was not so connected with the difficulty in which deceased lost his life as to render it admissible to show who was the aggressor.

The evidence of threats toward defendant, growing out of alleged interference of defendant with deceased's dealings with Cooley Bell, a negro on defendant's place, were fully developed in the evidence, and the other proposed evidence involved collateral controversies too remote. Davis v State, 213 Ala. 541, 105 So. 677; Harden v. State, 211 Ala. 656, 101 So. 442; Hill v. State, 194 Ala. 11, 69 So. 941, 2 A.L.R. 509; Gassenheimer v. State, 52 Ala. 313. The evidence of threats by defendant, deposed to by the witness Martin was admissible, and not subject to the objection that it went into the particulars of a former...

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11 cases
  • Powell v. State
    • United States
    • Alabama Supreme Court
    • 24 Marzo 1932
    ...no error is made to appear from the ruling of the court on defendants' motion for a new trial based on the above ground. Hendry v. State, 215 Ala. 635, 112 So. 212. It also insisted by defendants that a new trial should have been granted them, because, inter alia, they were not given time t......
  • Bracey v. United States
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • 31 Marzo 1944
    ...F.2d 86, 91; State v. Simmons, 332 Mo. 247, 254, 58 S.W.2d 302, 304; People v. Lucich, 111 Cal.App. 293, 295 P. 593; Hendry v. State, 215 Ala. 635, 637, 112 So. 212, 214. 14 Commonwealth v. Ezell, 212 Pa. 293, 296, 61 A. 930, 931; State v. Hurst, 153 Minn. 525, 536, 193 N.W. 680, 684; Peopl......
  • Beasley v. State
    • United States
    • Alabama Court of Appeals
    • 13 Agosto 1957
    ...pass upon the qualifications of all the persons * * * to serve as jurors.' See O'Rear v. State, 188 Ala. 71, 66 So. 81. In Hendry v. State, 215 Ala. 635, 112 So. 212, our Supreme Court construed predecessor provisions to §§ 55 and 64 in pari In Brown v. Woolverton, 219 Ala. 112, 121 So. 404......
  • Rose v. Magro
    • United States
    • Alabama Supreme Court
    • 24 Octubre 1929
    ... ... take assailant's life as the preventive alternative must ... be shown; and that defendant so believed. White v ... State, 209 Ala. 546, 96 So. 709; Union Indemnity Co ... v. Webster, 218 Ala. 468, 118 So. 798; Drummond v ... Drummond, supra. That is to say, the ... as to whether the jurors have been indicted for a similar ... offense within the past twelve months. Hendry v ... State, 215 Ala. 635, 112 So. 212; Charleston v ... State, 133 Ala. 118, 32 So. 259 ... In the ... recent case of Brown v ... ...
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