Owens v. State

• Citation: 215 Ala. 42,109 So. 109
• Decision Date: 01 April 1926
• Docket Number: 6 Div. 500
• Parties: OWENS v. STATE.
• Court: Alabama Supreme Court

109 So. 109

215 Ala. 42

OWENS v. STATE.

6 Div. 500

Supreme Court of Alabama

April 1, 1926

Rehearing Denied June 24, 1926

Appeal from Circuit Court, Jefferson County; W.E. Fort, Judge.

Frank Owens was convicted of robbery, and he appeals. Affirmed.

Charlton & Charlton, of Birmingham, for appellant.

Harwell G. Davis, Atty. Gen., and Thos. E. Knight, Jr., Asst. Atty Gen., Jim Davis, Sol., and Willard Drake, Asst. Sol., both of Birmingham, for the State.

SAYRE J.

Defendant a negro, was convicted of robbery from the person of Richard Warner, a white man. His motion for a change of venue was denied, and he now insists that in this ruling the trial court committed reversible error. The offense with which defendant stood charged was committed in May, 1924. Defendant was indicted May 26th, and was called for trial two days later, but the case was then postponed to June 14th, when the motion for a change of venue was made and overruled and the case continued until the call of the criminal docket in October. On October 23, 1924, defendant was brought to trial. He then renewed his motion for a change of venue, putting in evidence affidavits taken during the first half of June and newspaper clippings dated before and after the crime charged to him. Such of them as antedated the case in hand gave under great headlines, the details of other crimes of a similar character; some of them describing the trial and conviction of the criminals. As shedding light upon the situation presented by these newspaper accounts, we quote from defendant's brief as follows:

"The crime with which appellant stands charged was one of the very last of a series of murders and murderous assaults, some 25 to 30 in number, and covering a period of 18 months, or thereabouts, and popularly referred to in the Birmingham district as the 'axe murders.' "

And in this connection, it should be stated that the victim of the robbery charged in this indictment was, as the evidence without conflict went to show, assaulted and grievously wounded with an axe as he passed the mouth of an alley on his way home between 10 and 11 o'clock, p.m., his pockets turned, and money and a watch taken from his person, as charged in the indictment. These newspaper clippings, transmitted to this court in the original print, have been examined, but may not be taken into consideration in determining the question presented by the motion, for the reason that they have not been incorporated in the bill of exceptions. Pruitt v. McWhorter, 74 Ala. 315; Supreme Court rules 23 and 47. Had they been so incorporated, the originals would be the proper subject of consideration in connection with the bill.

However, we think the substance of the situation, minus the headlines, may be fairly inferred from the affidavits put in evidence for and against the motion. It may be conceded that the community where these outrages had occurred was in a certain state of mind concerning the situation generally. They knew, we may assume--because the evidence shows that a good many people knew--that within a few hours of the crime defendant had confessed. This confession was drawn from defendant by such means that the court very properly refused to hear it at the trial, except in so far as it had the corroboration of extraneous facts; but it figured no doubt in the public mind as a confession of guilt. And some of the affidavits submitted by defendant were to the effect that affiants had heard some people express the opinion that a negro accused of an axe murder did not deserve a trial in the law courts, and a number of affiants gave their own opinion that defendant could not get a fair trial. But the opinions of witnesses, unsupported by facts, count for little, and, it will be noted, these affidavits were exhibited to the court in June. Defendant was tried in the last week of the following October. At that time the affidavits taken in June were again placed in evidence and in addition new affidavits by defendant's attorney and W.W. Nelson, who described himself as a "newspaper special feature writer, working for New York and Chicago publications," were offered, and went to show the opinion of affiants that the public mind had been permeated by the fixed opinion as to defendant's guilt to such extent that it would be impossible for him to get a fair and impartial trial at that time. But this again was mere opinion. On the other hand, affidavits in considerable number were offered against the motion, going to prove that affiants had read the newspaper accounts, that they were informed as to public opinion, had heard no threats, nor any other indications of an inflamed state of the public mind, and expressed opinions that there was nothing to prevent a fair and impartial trial by jury. Nor is there any evidence of public anger against this defendant such as will be found in the cases cited, in which this court held that a change of venue should have been granted, no storming of the jail, no mob seeking to execute vengeance on defendant, no necessity for the attendance of the military forces to protect him, as was the fact in one part or another in most of those cases. Posey v. State, 73 Ala. 490 ("the circumstances attending the trial and conviction of this defendant [Posey] were of so public a character that all men must be more or less cognizant of them"); Howard v. State, 159 Ala. 30, 49 So. 108 (where the right to a change of venue was maintained in a dissenting opinion); Hawes v. State, 88 Ala. 37, 7 So. 302 (a case well remembered in the history of this state, in which our predecessors approved the overruling of a motion for a change of venue, although at an earlier stage of the case a mob, seeking defendant's life, had suffered a bloody repulse of its attack upon the jail, involving the loss of 12 or 15 lives). We do not intend to convey the idea that some such demonstration of public anger as we have noted above must be proved as a condition precedent to a change of venue. In Birdsong v. State, 47 Ala. 68, cited by defendant, it was ruled that the motion should have been granted on an affidavit of the defendant showing denunciatory newspaper comment directed against him specifically and that there was great excitement and prejudice in the minds of the people against affiant; but the comment of the court was directed chiefly against the ineptitude of the opposing affidavits which merely stated that affiants, "several persons," did not believe there was such prejudice or excitement against defendant as would deny him a fair and impartial trial, and the decision was that they were no sufficient answer to the case made by defendant.

All our cases hold that the burden is on the accused to show to the reasonable satisfaction of the court that an impartial trial and an unbiased verdict cannot be reasonably expected in the circumstances obtaining at the time when and in the place where the case is brought to trial. Nor would we abate in the slightest degree that substantial care with which constitutional and statute law and judicial opinion have sought to guard the right of trial by an impartial jury; but in the case shown by the record, considering only the correctness of the ruling made at the time of the trial, since defendant could not have been prejudiced by the ruling made 5 months before (Hawes v. State, supra), we cannot fail to observe that there was a quiet and orderly trial by a jury selected with due care and without unusual difficulty and in the absence of any evidence of public excitement, anger, or prejudice against defendant. Hence we find no error in the overruling of defendant's motion for a change of venue. The decisions of this court in previous cases--to some of which we have referred--abundantly sustain this conclusion. McClain v. State, 182 Ala. 67, 62 So. 241; Adams v. State, 181 Ala. 58, 61 So. 352; Godau v. State, 179 Ala. 27, 60 908.

Motions for continuance are addressed, within limits, to the discretion of the trial court. In this case the grounds for the motion are found in the same facts and circumstances discussed in our consideration of the application for a change of venue. In the case of Seay v. State, 207 Ala. 453, 93 So. 403, cited by defendant, it was ruled for error that the court denied a motion to continue; but that was a very different case, for there this court held that the entire atmosphere of the trial was permeated by excitement, feeling, and a determination to condemn and punish defendant, regardless of his mental responsibility, to such an extent that during the progress of the trial a mob attempted to storm the jail in order to execute vengeance upon the accused.

Nor do we find error in the method adopted in the drawing of the venire for this and other cases of like character. Defendant refers to sections 6686 et seq. of the Code of 1923, which govern the drawing of juries in Jefferson county. As to that if we remember the argument made at the bar, emphasis was laid upon the proposition that the presiding judge of the circuit court of Jefferson drew the venire instead of one of the judges sitting for the trial of criminal causes. But the statute provides that the presiding judge may draw and impanel all juries. Section 6691. And "all the judges shall have equal power, authority and jurisdiction." Section 6688. We see no possibility of error in the conduct of this case in respect of the drawing of the venire. Any of the judges might have drawn it and the presumption must be indulged that the judges were in accord as to that, though no minute entry was made in virtue of which the presiding judge assumed to draw the jury or assigned that duty to some other. Brown v....