Mathis v. State

• Decision Date: 14 July 1966
• Docket Number: 4 Div. 211
• Parties: Ben T. MATHIS v. STATE of Alabama.
• Court: Alabama Supreme Court

Page 564

189 So.2d 564

280 Ala. 16

Ben T. MATHIS v. STATE of Alabama.

4 Div. 211.

Supreme Court of Alabama.

July 14, 1966.

Rehearing Denied Sept. 8, 1966.

Joe S. Pittman, Enterprise, and G. A. Lindsey, Elba, for appellant.

Richmond M. Flowers, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State.

GOODWYN, Justice.

Appellant, Ben T. Mathis, was indicted in Coffee County for the offense of murder in the first degree, found guilty and sentenced to death. His appeal here is under the provisions of the automatic appeal statute. Act No. 249, appvd. June 24, 1943, Gen. Acts 1943, p. 217; 1955 Cum. Pocket Part, Code 1940, Tit. 15, § 382(1) et seq.; Recompiled Code 1958 (unofficial), Tit. 15, § 382(1) et seq.

The indictment charges, in count 1, that appellant 'unlawfully and with malice aforethought killed Joseph Edward Morgan, by stabbing him with a knife.' In count 2, it is charged that the killing was 'by stabbing him with a sharp instrument, a better description of which is unknown to the grand jury.'

Appellant was represented at his arraignment by two members of the Coffee County Bar, appointed by the court. At that time he entered pleas of 'not guilty' and not guilty by reason of insanity.' The same attorneys represented him throughout his trial and on his motion for a new trial, and also represent him on this appeal.

Being mindful of our duty in cases of this kind, we have carefully considered all of the testimony, even though no lawful objection or exception was made thereto, and find none seriously prejudicial to the rights of appellant; nor can we say, after considering all of the testimony, that the verdict is so decidedly contrary to the great weight of the evidence as to be wrong and unjust. See: Act No. 249, § 10, supra; 1955 Cum. Pocket Part, Code 1940, Tit 15, § 382(10), supra; Recompiled Code 1958 (unofficial), Tit. 15, § 382(10), supra.

Under the evidence, the issue as to appellant's guilt was clearly for the jury's determination. No evidence was offered in support of appellant's insanity plea.

The trial court, in its oral charge, fully expounded the applicable law, to which no exception was taken. Neither the State nor the appellant requested the giving of written charges.

Although reversible errors are charged and argued in appellant's brief, we find no merit in any of them. Nor do we find any other ground for reversal presented by the record. See: Code 1940, tit. 15, § 389. Accordingly, the judgment is due to be affirmed.

Defendant's motion for a change of venue was denied after the taking of considerable evidence on an oral hearing before the trial court. It is argued in appellant's brief that it was error to deny the motion because

'* * * the widespread notoriety and publicity accorded the double murder of Mr. and Mrs. Mogan, who were long time and respected residents of the City of Enterprise, Alabama, by the press, radio and television in the City of Enterprise and surrounding area, created an atmosphere under which it became an impossibility for this defendant to receive a fair trial at the hands of an impartial jury.'

Publicity by the press, radio and television does not necessarily constitute ground for a change of venue. See: Denton v. State,263 Ala. 311, 314--315, 82 So.2d 406; Campbell v. State, 257 Ala. 322, 324--325, 58 So.2d 623; Littlefield v. State, 36 Ala.App. 507, 510, 63 So.2d 565, cert. den. 258 Ala. 532, 63 So.2d 573. Whether a motion for a change of venue should be granted is a matter addressed to the sound discretion of the trial court. See: Cobern v. State, 273 Ala. 547, 551, 142 So.2d 869; Collins v. State, 234 Ala. 197, 199, 174 So. 296; Littlefield v. State, supra. From a consideration of the evidence taken on the hearing of the motion, we cannot say that the trial court abused its discretion in denying the motion.

The following from Campbell v. State, 257 Ala. 322, 324--325, 58 So.2d 623, supra, is equally applicable here:

'There was no error in overruling the motion for change of venue. The defendant on such a motion has the burden of showing to the reasonable satisfaction of the court that a fair and impartial trial cannot be had and an unbiased verdict cannot reasonably be expected. Godau v. State, 179 Ala. 27, 60 So. 908; Patton v. State, 246 Ala. 639, 21 So.2d 844. * * *

'* * * In Godau v. State, 179 Ala. 27, 60 So. 908, 910, it was said:

"So long as we have newspapers we may expect to have through them the report of crimes, and it is not to be unexpected that, when a homicide is committed * * * the newspapers of the community, answering the public interest, will furnish the defendant with at least some material upon which to base an application similar to the one under discussion.'

'Also in McClain v. State, 182 Ala. 67, 62 So. 241, 243, it was said:

"We are not prepared to concede * * * that the sensational language of a newspaper reporter or special correspondent used in 'writing up' such cases * * * may be safely taken as a reflection of general public sentiment; nor that it may be lightly assumed that such statements as those * * * shown are capable of permanently molding and fixing the opinions of the more intelligent classes of the people to the extinction of their sense of fair play, and the suppression of their sober second thought.'

'The mere belief of the defendant or of his witnesses that he cannot receive an impartial trial is not sufficient to entitle him to a change of venue. Patton v. State, supra; Lee v. State, 246 Ala. 343, 20 So.2d 471; certiorari denied 325 U.S. 888, 65 S.Ct. 1576, 89 L.Ed. 2002.'

The defendant moved to quash the indictment and also interposed a plea in abatement thereto. Both of these charge that the indictment was not returned by a lawfully constituted grand jury for the following reasons: That General Act No. 59, appvd. March 2, 1939, Gen. Acts 1939, p. 86, provides for the establishment of a jury commission in each of the counties in the State; that after the enactment of Act No. 59, and while it was in full force and effect Local Act. No. 572, appvd. Sept. 9, 1953, Acts 1953, Vol. II, p. 813, was enacted by the legislature; that Act No. 572 is made applicable only to Coffee County and purports to create in Coffee County a jury board in place of the jury commission provided for by General Act No. 59; that the jury board provided for by Local Act No. 572 'has maintained a jury box in the Enterprise Division of Coffee County and the names of the grand jurors as placed therein by the members of the said jury board were drawn from said jury box and subsequently became members of the grand jury' which returned the indictment against the defendant; that Act No. 572, a local law, is in conflict with Act No. 59, a general law; that, therefore, Act No. 572 is unconstitutional and void because it is violative of § 105, Constitution 1901, which provides, in pertinent part, that 'no special, private or local law, except a law fixing the time of holding courts, shall be enacted in any case which is provided for by a general law.'

This contention is not well taken. Since the local act is materially different from the general act, the local act is not violative of § 105. See: State ex rel. Jones v. Steele, 263 Ala. 16, 81 So.2d 542, and cases there cited and discussed. One material difference in the two Acts is the number of members constituting the 'jury commission' (provided for by the general act) and the 'jury board' (provided for by the local act) and the manner of appointing such members.

It was not error to overrule the motion to quash; nor was it error to sustain the State's demurrer to the plea in abatement.

We see no need to recite or discuss the evidence in detail. The following should suffice for a proper disposition of the appeal:

About 12:30 A.M. on June 23, 1964, two Enterprise police officers, while on routine patrol, observed a 1964 Chevrolet automobile parked on a by-pass near Enterprise. They examined the car, got its license tag number, and noticed in it a plastic bag containing cheese, vanilla wafers and crackers, with a toy pistol on top of the bag. The ignition key was out and the car was unlocked. They then checked on the car's registration and found that the tag was issued to Mr. and Mrs. J. E. Morgan. About 1:50 A.M. a message came from Ozark asking information concerning the registration of the car. It developed that the car had been found in Ozark in the possession of a negro, who ran away after being stopped by a police officer because of improper driving. When the two Enterprise officers received the message from Ozark, they advised Ozark to hold the car, that it was stolen. Then they got in touch with a nephew of Mr. and Mrs. Morgan, who accompanied them to the Morgan home. Upon arrival, they found Mr. and Mrs. Morgan dead on the floor. Mr. Morgan had been stabbed with a sharp instrument 111 times.

On June 25 a deputy sheriff found a convict-type shirt near where the Morgans' car was observed on the by-pass early on the morning of June 23. This shirt was identified as one having been issued to Mathis, who had escaped from the Camp Enterprise Convict Road Camp on the night of June 20, or 21, and was still at large on the night of June 22--23.

The Morgan home was approximately a mile and a half from the convict camp. Mr. Morgan's son testified that he last saw his father alive the Sunday afternoon before he died on Monday; that he was in his father's home over that weekend; that the coat and pants introduced in evidence as State's exhibits 3 and 4 belonged to him; and that he last saw these in his father's home on the Saturday afternoon before his father died. Mathis was wearing these two articles when he was apprehended in Ozark on July 4, 1964, at about 9:30 P.M., and then taken to the Ozark City jail. At the jail, the coat was taken off of Mathis 'to identify him by the scars on his body.' It was stipulated that the shoes, socks and underwear, being worn by Mathis...