Patterson v. State

• Decision Date: 24 March 1932
• Docket Number: 8 Div. 320.
• Parties: PATTERSON v. STATE.
• Court: Alabama Supreme Court

141 So. 195

224 Ala. 531

PATTERSON v. STATE.

8 Div. 320.

Supreme Court of Alabama

March 24, 1932

Rehearing Denied April 9, 1932.

Appeal from Circuit Court, Jackson County; A. E. Hawkins, Judge.

Haywood Patterson was convicted of rape, and he appeals.

Affirmed.

ANDERSON C.J., dissenting.

George W. Chamlee, Sr., and George W. Chamlee, Jr., both of Chattanooga, Tenn., and Joseph R. Brodsky, Irving Schwab Allan Taub, Elias M. Schwartzbart, Joseph Tauber, and Sidney Schreiber, all of New York City, for appellant.

Thos E. Knight, Jr., Atty. Gen., and Thomas Seay Lawson, Asst. Atty. Gen., for the State.

BROWN J.

The appellant was indicted, tried, and convicted of the offense of rape.

No question was raised on the trial as to the sufficiency of the indictment, which is in the form prescribed by the statute, and under the uniform decisions of this court was sufficient to advise the defendant of the nature and cause of the accusation he was called upon to answer. Code 1923,§ 4556, form 88; Myers et al. v. State, 84 Ala. 11, 4 So. 291; McQuirk v. State, 84 Ala. 436, 4 So. 775, 5 Am. St. Rep. 381; Schwartz v. State, 37 Ala. 460; Malloy v. State, 209 Ala. 219, 96 So. 57; Doss v. State, 220 Ala. 30, 123 So. 231, 68 A. L. R. 712.

We cannot, on the record before us, affirm error in the action of the circuit court on appellant's petition for change of venue. The only evidence offered in support of the petition was the oath of the movants; the articles appearing in the three newspapers; the testimony of Wann, the sheriff of the county, and Major Starnes, who was in command of the military company. This falls far short of showing to the reasonable satisfaction of the judicial mind an all-pervading prejudice against the accused in the county of the trial that would prevent him from obtaining a fair and impartial jury for his trial.

The accused and his alleged accomplices, who swore to the petition for change of venue, were confined in jail and were not in a position to ascertain the state of the general public feeling and sentiment of the county, and, as was observed in Hawes v. State, 88 Ala. 37, 54, 7 So. 302, their testimony is entitled to very little weight.

The publications in the local paper, the Sentinel, were not inflammatory, and contained no undue assumption of the guilt of the accused, and "nothing appears to have been stated for the purpose of arousing indignation, or tending to create prejudice, except in so far as the publication of the facts and circumstances of the murders as they were developed might have had that effect; and in stating the facts there appears to have been no disposition to suppress whatever was favorable to defendant." Hawes v. State, 88 Ala. 54, 7 So. 302, 307.

In fact, these publications were in a sense conciliatory, apparently designed to suppress rather than create an unlawful hostile sentiment against the accused.

As to the publications appearing in the Montgomery Advertiser and the Chattanooga paper, there was no evidence showing to what extent, if any, said papers were circulated in the county from which the jurors were to be drawn, and in the absence of such proof these publications were entitled to little or no weight. Malloy v. State, 209 Ala. 219, 96 So. 57.

The testimony of the witnesses Wann and Starnes, the only witnesses examined who were in a position to ascertain and know the nature of public feeling, goes to show that no threats or hostile demonstrations were expressed or made against the defendant; that the crowds that gathered were not disorderly, and readily dispersed when advised by some of the leading citizens of Scottsboro to do so, and there is nothing in the evidence going to show race prejudice against the accused, or local prejudice in favor of the girls who are alleged to have been mistreated. In fact, neither the defendant nor his alleged victims reside in Jackson county.

In short, the evidence shows nothing more than the gathering of a crowd impelled by curiosity, and not for hostile or punitive purposes.

True, the evidence shows that the sheriff requested the Governor to send a company of the state militia to protect the defendant, and that prompt orders to this end were given and carried out, and that they were present during the proceedings; but this, without more, is not enough to authorize the granting of the motion.

We are, therefore, impelled to hold that the appellant has failed to sustain the allegations of his motion by sufficient evidence, and that the petition was denied without error. Godau v. State, 179 Ala. 27, 60 So. 908; Seams v. State, 84 Ala. 410, 4 So. 521; Jones v. State, 181 Ala. 68, 61 So. 434; Williams v. State, 147 Ala. 10, 41 So. 992.

The facts going to show hostile demonstrations and threats toward the prisoner in Thompson v. State, 117 Ala. 67, 23 So. 676, do not appear in the report of that case, but the record in that case shows that threats of lynching were made, and that a hostile crowd gathered with the purpose of following the sheriff and his prisoner to Huntsville where he was carried for safety, for the purpose of taking the prisoner from the sheriff, and followed as far as Greenbrier, where they met with providential hindrances that caused them to forego their purpose. Moreover, the person abused in that case was a mere child and a resident of Decatur, the county seat of the county where the trial was had.

The only question raised on the trial as to the venire of jurors from which the jury to try the defendant was selected is stated in the bill of exceptions as follows: "Before proceeding to strike the jury in this case, defendant demanded a special venire, in addition to the regular venire, for the trial of this case. The court declined to allow a special venire for this case and required the defendant to strike a jury from the regular venire drawn for the week and the special venire drawn in the case of The State of Alabama v. Charley Weems and Clarence Norris, to which action of the court in not allowing him a special venire in this case, and requiring him to select a jury from the regular venire and the special venire drawn in the case of the State v. Charley Weems and Clarence Norris, defendant duly and legally reserved an exception."

The case of this appellant, which was numbered 2404 in the circuit court, was argued and submitted on this appeal along with the case of Charley Weems and Clarence Norris, which was a joint indictment against this appellant, Charley Weems, Clarence Norris, and others, numbered 2402 in the circuit court, and the record in this case, as well as the record in the other case, shows that all of the defendants, including appellant, were duly arraigned on March 31, 1931, in cases numbered 2402 and 2404; that they interposed a plea of not guilty, and both of said cases were set for trial on April 6, 1931; that the court ordered that the jury, to try the cases so set, should consist of one hundred jurors, composed of the regular venire of jurors drawn for the week beginning April 6th, consisting of seventy-five, and twenty-five special jurors, then drawn from the jury box of the county in the presence of the defendant and his counsel, and the sheriff was ordered to summon all of said jurors to be present on the date set for the trial, and to serve each of the defendants with a list of the jurors so drawn and ordered summoned, together with a copy of the indictment, and that said order was duly executed by such service by the sheriff, on April 4, 1931. The venire of jurors so drawn and summoned constituted the special venire for defendant's trial, and was in strict compliance with the statute. Code of 1923, §§ 8644, 8649.

The section of the Code last above cited, section 8649, provides: "Whenever the judge of any court trying capital felonies shall deem it proper to set two or more capital cases for trial on the same day, said judge may draw and have summoned one jury or one venire facias of petit jurors for the trial of all such cases so set for trial on the same day."

Prior to the enactment of this statute the law required a special venire for each case, whether it was set for trial along with other capital cases or not. Walker v. State, 153 Ala. 31, 45 So. 640; Adams v. State, 133 Ala. 166, 31 So. 851; Cawley v. State, 133 Ala. 128, 32 So. 227; Rambo v. State, 134 Ala. 71, 32 So. 650.

But the quoted statute changed this rule as applied to cases set for trial on the same day. Umble v. State, 207 Ala. 508, 93 So. 531; Stewart v. State, 18 Ala. App. 92, 89 So. 391.

The contention, therefore, of the appellant, that he was entitled to a special venire other than the special venire so drawn and constituted, is without merit.

The state's witness, Victoria Price, the person alleged to have been raped, on cross-examination by the defendant's counsel, testified, inter alia, "I have been married; I have been married twice. Both of my husbands are not now living; one of them is dead." Defendant's counsel thereupon asked the witness: "Are you divorced?" This question was objected to by the solicitor, and the court sustained the objection, and properly so, because the question clearly called for immaterial evidence.

This witness was also asked on cross-examination: "Did you ever practice prostitution?" Objection to this question was likewise well sustained. There was no evidence at this time in the case, and, as for that matter, no such evidence was adduced on the trial, going to show that the defendant had intercourse with the witness by and with her consent therefore, the question elicited immaterial evidence. Griffin v. State, 155 Ala. 88, 46 So. 481; Rice v. State of Florida, 35 Fla. 236, 17 So. 286, 48 Am. St. Rep. 245; Story v. State, 178 Ala. 98, 59 So. 480; 22 R. C. L....