Kelly v. State

Citation49 So. 535,160 Ala. 48
PartiesKELLY v. STATE.
Decision Date11 May 1909
CourtAlabama Supreme Court

Appeal from City Court of Talladega; G. K. Miller, Judge.

Frank Kelly was convicted of murder in the first degree, and appeals. Affirmed.

The facts are stated in the opinion of the court. The following charges were refused to the defendant: (6) "Before the jury can convict a defendant, they must be satisfied to a moral certainty, not only that the proof is consistent with the defendant's guilt, but that it is wholly inconsistent with every other rational conclusion; and unless the jury are so convinced by the evidence of the defendant's guilt that they would each venture to act upon that decision in matters of the highest concern and importance to his own interest, then they must find the defendant not guilty." (8) "If you believe from the evidence that Frank Kelly had submitted to arrest on the night when Thompson was killed, and took no part in the conspiracy, if a conspiracy existed, and did not fire the shot which killed Thompson then you must find the defendant not guilty."

Cecil Browne and J. C. Burt, for appellant.

Alexander M. Garber, Atty. Gen., Thomas W. Martin, Asst. Atty. Gen Marion H. Simms, Sol., and Whitson & Harrison, for the State.

MAYFIELD J.

The indictment in this case was returned on March 7, 1908. The accused was arraigned on March 17, 1908, and the trial was set for April 9th following. On the day set for trial accused moved the court for a change of venue. The application was sworn to by accused. No affidavits were offered in support of the application, and no other evidence was offered to support the averments of the application or petition for the change of venue. The court, on motion of the solicitor, dismissed the application. On this showing we are not able to say that there was error in the dismission or denial of the application.

It has been held that the application comes too late, if not filed until the day of trial, unless some good reason is shown for the delay. None was shown in this case, so we cannot say the dismissal was error. Fallin's Case, 86 Ala. 13, 5 So 423; Byers' Case, 105 Ala. 31, 16 So. 716; 1 Mayfield's Dig. p. 858. Had this application been made in time and supported by proof, we think the change of venue should have been granted. There can be no doubt that there was intense feeling and prejudice prevailing in Talladega county at the time of this trial against all persons charged with the murder of Police Officer Thompson; this being the offense with which the accused, together with a number of other negroes, was charged. But on the showing made in support of the application we cannot say that it was error to deny the change of venue.

Continuances are within the discretion of the trial court, and its action in granting or refusing a continuance will not be reviewed by this court on appeal, unless a gross abuse of the discretion is shown. White v. State, 86 Ala. 69, 5 So. 674; 1 Mayfield's Dig. p. 232.

The accused was not denied his constitutional right to be confronted by the witnesses against him, nor to have compulsory process for his witnesses. Many of his witnesses were confessedly secreting themselves to evade arrest upon the charge of murder. The state was required to admit a showing for the absent witnesses for defendant. To have issued process for them at the time application was made would clearly have been unavailing for that trial. Winter v. State, 123 Ala. 1, 26 So. 949; Walker v State, 117 Ala. 85, 23 So. 670.

There was no error in denying to defendant the right to ask a state's witness whether or not the witness was a beginner at the game of craps. It was not a proper inquiry on this trial.

There was no error in allowing the introduction in evidence of the municipal ordinances of Talladega; proper predicates of identification and proof having been made, and there being proof tending to show that defendant was violating one of those ordinances when the deceased police officer, in attempting to arrest defendant, and others engaged with him, was killed. Selma Co. v. Owen, 132 Ala. 430, 31 So. 598; Barnes v. Alexander City, 89 Ala. 602, 7 So. 437.

We are unable to see any possible relevancy of the evidence as to where the state's witness got the pistol in question. Furthermore, it was not made to appear what the answer would be, so as to allow the court to know whether the evidence would be relevant or not; and the trial court cannot be put in error unless it be shown that the proposed evidence was relevant. Ross v. State, 139 Ala. 144, 36 So. 718.

When the defendant in a criminal case elects to testify for himself as a witness, he thereby waives his constitutional right of not being compelled to give evidence against himself as to that particular crime for which he is on trial; but he thereby elects to assert his other statutory right to testify in his own behalf, and if he so elects to testify he becomes subject to cross-examination and impeachment, in the same manner and...

To continue reading

Request your trial
20 cases
  • Knowles v. Blue
    • United States
    • Alabama Supreme Court
    • January 18, 1923
    ... ... etc., v. Geo. W. Phalin Lumber Co., 196 Ala. 362, 71 So ... 989; Birmingham Paint, etc., Co., v. Gillespie, 163 ... Ala. 408, 50 So. 1032; Kelly v. State, 160 Ala. 48, ... 49 So. 535; Ex parte Scudder-Gale Gro. Co., 120 Ala. 434, 25 ... So. 44; Denson v. Stanley, 17 Ala. App. 198, 84 So ... ...
  • Gobble v. State, No. CR-05-0225 (Ala. Crim. App. 2/5/2010)
    • United States
    • Alabama Court of Criminal Appeals
    • February 5, 2010
    ...So. 2d 145 (1947); Green v. State, 218 Ala. 363, 118 So. 506 (1928); Carpenter v. State, 193 Ala. 51, 69 So. 531 (1915); Kelley v. State, 160 Ala. 48, 49 So. 535 (1909); Cotton v. State, 87 Ala. 103, 6 So. 372 (1889). A defendant who has introduced himself as a witness may be cross examined......
  • Gobble v. State
    • United States
    • Alabama Court of Criminal Appeals
    • September 14, 2012
    ...So.2d 145 (1947); Green v. State, 218 Ala. 363, 118 So. 506 (1928); Carpenter v. State, 193 Ala. 51, 69 So. 531 (1915); [ Kelly ] v. State, 160 Ala. 48, 49 So. 535 (1909); Cotton v. State, 87 Ala. 103, 6 So. 372 (1889). A defendant who has introduced himself as a witness may be cross examin......
  • Smith v. State
    • United States
    • Alabama Court of Criminal Appeals
    • December 22, 2000
    ...145 (1947) ; Green v. State, 218 Ala. 363, 118 So. 506 (1928) ; Carpenter v. State, 193 Ala. 51, 69 So. 531 (1915) ; Kelly v. State, 160 Ala. 48, 49 So. 535 (1909) ; Cotton v. State, 87 Ala. 103, 6 So. 372 (1889). A defendant who has introduced himself as a witness may be cross-examined and......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT