Malloy v. State

• Court: Supreme Court of Alabama
• Citation: 209 Ala. 219,96 So. 57
• Docket Number: 8 Div. 494.
• Parties: MALLOY v. STATE.
• Decision Date: 12 April 1923

96 So. 57

209 Ala. 219

MALLOY
v.
STATE.

8 Div. 494.

Supreme Court of Alabama

April 12, 1923

Appeal from Circuit Court, Limestone County; Osceola Kyle, Judge.

Russell Malloy was convicted of rape, and he appeals. Affirmed. [96 So. 58]

Gibson & Davis, of Birmingham, for appellant.

Harwell G. Davis, Atty. Gen., and Lamar Field, Asst. Atty. Gen., for the State.

MILLER, J.

The defendant, Russell Malloy, was indicted, tried, and convicted of rape; his punishment being fixed at 25 years in the penitentiary.

The indictment literally follows the form No. 88 provided by section 7161 of the Code of 1907 for the offense charged. This was sufficient, and the court did not err in overruling the demurrer to it. Section 7132, Code 1907.

There was an application by the defendant for a charge of venue, setting forth the reasons why he could not have a fair and impartial trial in that county in which the indictment was found, which was sworn to by the defendant. It was refused by the court on the hearing.

When the defendant makes application for a change of venue, the burden rests on him to show "to the reasonable satisfaction of the court that an impartial trial and an unbiased verdict cannot be reasonably expected" in that county where the indictment was found. Seams v. State, 84 Ala. 410, 4 So. 521. When the application is refused, and it is presented to this court on appeal, the application and the evidence offered in the trial court must be reviewed and revised, and this court will reverse and remand, or render such judgment on the application as it may deem right, without any presumption in favor of the judgment or ruling of the lower court thereon. Section 7851, Code 1907, as amended by Gen. Acts Sp. Sess. 1909, p. 212; Godau v. State, 179 Ala. 38, 60 So. 908.

On the hearing the defendant offered in evidence a copy of the Florence Daily News, which contained an article on the alleged offense. There was no evidence offered to show this paper was circulated or had any subscribers in the county where the indictment was found. The court informed the defendant, if that paper had any circulation in Limestone county, that the article would be admitted in evidence. The defendant declined to make such proof, and the court sustained objection of the state to the introduction of the paper containing the article. The defendant cannot complain at this ruling, as there is no evidence indicating in any way how the article could or did have any influence on public opinion in the case in the county.

The court would not permit the defendant to ask a witness if the case had not been tried many times on the streets, everywhere in the town; "ever since this thing happened, hasn't it been the controlling topic of conversation." But the court permitted him to prove it was discussed in his presence on the streets. In this the court did not err. The witness stated he could not say how much it had been discussed, and said:

"I don't presume there has been a dozen men on the streets spoken to me about this case."

This was a witness of defendant, and the court would not permit him to be asked the following question:

"Do you mean that you reflected the public sentiment of the people of this county and this town under the headlines in your paper, without having consulted as many as a dozen people in the county?"

In this the court was correct, as the question called for an opinion, a conclusion, and no facts. [96 So. 59]

We have read carefully the application, the newspaper articles, the oral evidence, and the affidavits of witnesses introduced in support of and against the application, and we are not reasonably satisfied from this evidence that the defendant could not reasonably expect an impartial trial and an unbiased verdict by a jury in that county at the time the application for the change of venue was made and heard by the lower court. The defendant failed to meet the burden of proof placed on him by the statute, and it becomes our duty to affirm the ruling of the trial court in refusing to grant the application for a change of venue, a discussion of the testimony is unnecessary, and the statute does not require it to be expressed in this opinion. Godau v. State, 179 Ala. 27, 60 So. 908; Adams v. State, 181 Ala. 58, 61 So. 352.

The defendant pleaded not guilty, and not guilty by reason of insanity, to the indictment, but afterwards withdrew the plea of not guilty by reason of insanity.

Dr. King, who examined the person of the girl found two bruises on her neck, one a little larger than a silver dollar, the other not so large, one on the right and the other on the left of the neck; there was a mark across her back; one wrist was inflamed and swollen. Upon an examination of her person he found a tear about a quarter of an inch long in the fourchette, and the lower part of the vulva torn; her genital organs were congested or reddened and swollen. The court permitted the solicitor, over defendant's objection, to ask the witness the following question:

"State whether or not it had the appearance of being bruised; you say it was reddened and swollen?"

He answered:

"It was red and swollen. I could not say that it

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