Lee v. State, 4 Div. 335.

• Court: Supreme Court of Alabama
• Writing for the Court: FOSTER, Justice.
• Citation: 246 Ala. 343,20 So.2d 471
• Parties: LEE v. STATE.
• Docket Number: 4 Div. 335.
• Decision Date: 14 December 1944

20 So.2d 471

246 Ala. 343

LEE
v.
STATE.

4 Div. 335.

Supreme Court of Alabama

December 14, 1944

Rehearing Denied Jan. 25, 1945. [20 So.2d 472]

W. L. Lee, of Dothan, for appellant.

Wm. N. McQueen, Acting Atty. Gen., and John O. Harris, Asst. Atty. Gen., for the State.

FOSTER, Justice.

Appellant was convicted of murder in the first degree for killing his father, and his punishment fixed at life imprisonment.

The trial was carefully conducted, and there was no error in any of the rulings unless the motion for a new trial should have been granted because the verdict was contrary to the great weight of the evidence to the extent that it is apparent that the jury was influenced by some improper motive or erroneous theory of the law of insanity as a defense, or unless the motion for a change of venue should have been granted.

On the latter question, we observe that there was apparently never any controversy but that he killed his father about noon without any provocation, and that his defense would be and was not guilty by reason of insanity.

It occurred about 1 o'clock p. m. on the porch of the home of deceased where defendant resided also, no one else being immediately present. Defendant was a single man about twenty-seven years of age. After shooting his father twice, causing him to fall, defendant beat him on the head with the butt of the gun bursting open his head, which was probably the immediate cause of his death.

The family was prominent on both the paternal and maternal side in the county, and well to do in a financial and social way. When the officers came he was in his room and has never made reference to it in any respect since then so far as the evidence shows, except as a witness on the trial when he testified that he remembered nothing about it. On account of the family's prominence information concerning the incident spread throughout the county, perhaps the State. There was never any particular resentment manifested by the public, then nor later.

There were introduced by the defendant eight-six affidavits of residents in various parts of the Clayton Division of the county where the trial was had. They were all in substantially the same language, and to the effect that each had heard the case discussed, and that people generally think he was sane and ought to be electrocuted or sent to the penitentiary for life; and that in his opinion from such discussion defendant cannot get a fair trial, and that it would be useless to plead insanity, for they would convict him anyway. The former sheriff of the county was also of that opinion.

The State introduced affidavits of some sixty-seven residents of the Clayton Division, including the members of the grand jury when the indictment was returned and the present sheriff: all to the general effect that they were familiar with public sentiment in the county; had heard the case discussed; and on that basis, in their judgment, a fair and impartial trial could be had at Clayton. The State also introduced several witnesses who so testified in the presence of the court.

The trial was had at the October Term, 1943. The killing occurred the 5th or 6th of July, 1942. On July 20, 1942, the judge by virtue of section 428, Title 15, Code of 1940, held an investigation to determine by the verdict of a jury whether defendant was then insane. There was a formal trial and much evidence was introduced on both sides of that question. The defendant offered all that evidence on the trial of the motion for a change of venue. [246 Ala. 345] The result of that determination was not introduced, and was not before the jury on the trial later. The evidence on that trial showed nothing which supported the motion for a change of venue.

On such a motion 'facts and circumstances rendering such a [fair] trial...