Maund v. State, 4 Div. 602
| Decision Date | 09 November 1950 |
| Docket Number | 4 Div. 602 |
| Parties | MAUND v. STATE. |
| Court | Alabama Supreme Court |
E. C. Boswell, of Geneva, C. L. Rowe, of Elba, and E. O. Griswold, of Enterprise, for appellant.
A. A. Carmichael, Atty. Gen., and Jas. T. Hardin, Asst. Atty. Gen., for the State.
John Maund was indicted, tried and convicted of murder in the first degree in the Circuit Court of Coffee County (Enterprise Div.), and his punishment fixed at death. This appeal is governed by sections 382(1) and 382(2), Title 15, Pocket Part of the Code of 1940, being the automatic appeal statute.
Appellant admitted that he killed William A. Whigham, called Willie Whigham, in front of Whigham's home at about 9:30 to 10:00 o'clock on the night of January 2, 1950. It is not denied that the difficulty, which culminated in Whigham's death, arose out of a dispute between appellant and Whigham as to which one of them had rented from Mrs. Wall a certain sixty-nine acres of land for the year 1950. The Wall land is located on the Enterprise-Geneva Highway, about four miles out from Enterprise, on the same side of the highway, and some one hundred and fifty or two hundred yards from the farm of Whigham. Appellant lived about six miles from Enterprise on the same highway. It is not disputed that Whigham had rented and farmed the Wall land for the years 1947, 1948 and 1949. Appellant introduced a three year lease covering the Wall land executed by Mrs. Wall to him on August 24, 1949 for the years 1950, 1951 and 1952, the term beginning January 1, 1950. The State introduced a receipt for $25, given by Mrs. Wall to Whigham on June 24, 1949, reciting '1950 land rent'.
The State's evidence tended to prove that for many years appellant and deceased had been friends; that they had had several conversations prior to the fatal difficulty concerning the rental of the Wall land for the year 1950; that each claimed priority as to its occupancy for that year; that Whigham had posted the land and was guarding it to prevent appellant or anyone else from gaining possession of it; that on the night that Whigham was killed, he and his son Boyd Whigham drove up in front of deceased's home about 9:30 in Boyd Whigham's truck; that deceased's home was some seventy-five yards off the highway, with a driveway leading up to the house; that at about the time deceased and Boyd Whigham got out of the truck, appellant parked his automobile across the highway opposite Whigham's driveway, and off the pavement or 'black top,' got out of the car, left the parking lights on and came across the highway and entered the driveway of Whigham; that appellant called to Whigham and, with protestations of friendship, asked Whigham to come down and talk with him about the land matter; that Whigham went about half way down his driveway and told appellant to go on home; Whigham also told his son Boyd to take the truck and go to town and get the officers; that Boyd Whigham got in the truck and drove to Enterprise, passing appellant near the entrance to the Whigham driveway; that after Boyd Whigham drove out of the driveway and into the highway, appellant started to walk toward deceased, still protesting his friendship; that deceased told appellant to stop, but that he kept walking and when within about twenty feet of deceased fired one shot at him and, thereupon the two closed in combat; that this struggle continued for a short time with the parties moving away from the house toward the highway; that four or five shots were fired in the course of this struggle; that deceased fell to the ground and appellant began striking or beating him about the head with the pistol; that the wife of the deceased ran to her husband's assistance and begged appellant to stop beating him; that appellant, with abusive language, threatened to kill her too; that she went back to the house; that appellant then went back to his automobile and drove away. Whigham was shot three times with a thirty-two caliber revolver, and was severely beaten about the head. There was evidence to indicate that Whigham died almost instantly from one of the pistol wounds. Boyd Whigham was gone for about twenty minutes and when he returned with a highway patrolman his father was dead.
Appellant's version of the fatal difficulty was that, he (the appellant) was passing Whigham's home in his automobile when Boyd Whigham forced him off the highway with his truck, about opposite the Whigham driveway; that Boyd Whigham and the deceased got out of the truck and came back to his car, opened the car door and dragged him from his car and across the highway into the Whigham driveway, beating him as they went, with one or the other of them trying to cut him with a knife; that they knocked him down, and that deceased tried to hit him with a claw hammer while he was on the ground and deceased was bending over him; that deceased told Boyd that they had him where they wanted him and for Boyd to go get the officers of the law; that Boyd left and that after he left deceased tried to hit him with the hammer while he was down; that under these circumstances or conditions he shot deceased with a pistol.
Although the appeal is under the statute, above noted, because of the infliction of the death penalty, appellant was represented in the court below, and here, by able and reputable counsel of his own choice. Feeling that they have continuously and ably represented their client, we will in the main confine this opinion to propositions argued in brief and in the order therein made.
The indictment was returned by the grand jury of Coffee County, Alabama, on February 8, 1950. On February 17, 1950, appellant filed his application for a change of venue, and the same was set for hearing on February 27, 1950. On the day set, the issue was submitted to the trial court on affidavits and the oral testimony of the witnesses on the part of the defendant and by counter affidavits on behalf of the State. The application was denied.
The burden is on the defendant to show to the reasonable satisfaction of the court that an impartial trial and an unbiased verdict cannot be reasonably expected in order to achieve the right to a change of venue. Godau v. State, 179 Ala. 27, 60 So. 908; Patton v. State, 246 Ala. 639, 21 So.2d 844. The mere belief of the defendant or of his witnesses that he cannot receive such a trial is not enough. Lee v. State, 246 Ala. 343, 20 So.2d 471.
The most that can be said of defendant's evidence in support of his application for a change of venue is that it revealed public indignation at the atrocity of the crime immediately after its commission; general discussion of the guilt or innocence of the defendant; statements by one or two persons that defendant deserved the death penalty; rumors of similar statements by others not identified; rumor to the effect that defendant might be mobbed or lynched; the opinion of affiants that defendant could not get a fair trial and an unbiased verdict in Coffee County. These affidavits and statements by witnesses were, in substance, flatly contradicted by the affidavits of many other citizens of Coffee County. There is no evidence of any demonstration or the formation of a mob to take the law in its own hand, and there could not have existed any racial prejudice against defendant.
Under the provisions of Title 15, section 267, Code, it is the duty of this Court to review the action of the trial court in refusing to grant an application for a change of venue without any presumption in favor of the judgment or ruling of the lower court on said application. After a careful consideration of the application and affidavits and other evidence in support of and against the application, we feel that defendant failed to meet the burden above referred to, and it is our duty, under the law as it now exists, to affirm the action of the trial judge in refusing to grant the application for a change of venue. See the following cases: Baker v. State, 209 Ala. 142, 95 So. 467; Malloy v. State, 209 Ala. 219, 96 So. 57; Godau v. State, 179 Ala. 27, 60 So. 908; Collins v. State, 234 Ala. 197, 174 So. 296; Patton v. State, 246 Ala. 639, 21 So.2d 844; Lee v. State, 246 Ala. 343, 20 So.2d 471.
At his arraignment on February 27, 1950, appellant entered pleas of not guilty and not guilty by reason of insanity. When called to trial on March 9, 1950, appellant moved the court for permission to withdraw the pleas interposed upon his arraignment, and file a plea in abatement and a motion to quash the indictment. The plea and motion to quash were predicated on the alleged illegal filling of the jury box from which the grand jury was drawn, which returned the indictment against appellant, in that the jury commissioners, and each of them, and the clerk of the commission, had omitted or failed to take the oath of office prescribed by section 279 of the 1901 Constitution of Alabama and Title 30, sections 11 and 16, Code. In short, the argument is that the jury commission and the clerk thereof were wholly without authority to act, each having taken the following oath of office:
'The State of Alabama
'Coffee County
Probate Court.
'I, Marvin Weatherford, do solemnly swear that I am not disfranchised by the Constitution of Alabama, or by the Constitution or laws of the United States; that I will honestly and faithfully support and defend the Constitution and laws of the United States, the Union of the States, and the Constitution and laws of the State of Alabama, so long as I remain a citizen thereof; and that I will honestly and faithfully discharge the duties of the office upon which I am about to enter, to the best of my ability, so help me God.
's/ Marvin Weatherford.
'Coffee County.'
If it be conceded that there was an omission or failure on the part of the commissioners to take the...
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