Reeves v. State

• Decision Date: 06 August 1953
• Docket Number: 3 Div. 663
• Citation: 68 So.2d 14,260 Ala. 66
• Parties: REEVES v. STATE.
• Court: Alabama Supreme Court

Page 14

68 So.2d 14

260 Ala. 66

REEVES v. STATE.

3 Div. 663.

Supreme Court of Alabama.

Aug. 6, 1953.

Rehearing Denied Nov. 27, 1953.

Virgil McGee, John N. McGee, Jr., and Henry Heller, Montgomery, for appellant.

Si Garrett, Atty. Gen., and L. E. Barton, Asst. Atty. Gen., and Thos. M. Haas, Montgomery, of counsel, for the State.

MERRILL, Justice.

Appellant, Jeremiah Reeves, Jr., age seventeen years, was indicted for rape by a grand jury of Montgomery County. Upon trial, the jury found him guilty and imposed the death penalty. Judgment and sentence were in accord with the verdict. After his motion for a new trial was overruled, he brought this appeal.

There is no reason to make a detailed statement of the evidence. The following summary will suffice.

The prosecutrix, a white woman, testified that about 12:15 p. m. on July 28, 1952, a Negro male entered her home and forcibly ravished her, beat her about the head, took some money and departed. A neighbor testified that the prosecutrix came to her house about 12:40 p. m. in a state of shock and hysteria; that she was badly bruised and bleeding and asked her to report the attack to the police. The testimony of two doctors who treated her that day tended to support her claim that she had been ravished. Reeves was arrested Monday November 10, 1952 at 2:10 p. m. On Wednesday morning prosecutrix identified him at Montgomery police headquarters.

On the trial a witness for the State testified that he saw defendant running along a street about two blocks from where prosecutrix lived; that he picked him up in his automobile a short time before 1 o'clock p. m. and carried him six or seven blocks. The defendant offered some testimony that he was insane, some as to his good character, denied his guilt and claimed certain statements he had made were the result of coercion and promises. He sought to prove an alibi, that he was present where a group of people were playing dominoes, and this claim was supported by the testimony of one witness. Certain parts of the evidence will be more fully developed in the discussion of the matters raised in appellant's brief.

Counsel for defendant argue many points in brief and we consider them as they are raised, numbering them for convenience.

1. Defendant was denied due process because he was arraigned on the day following the return of three indictments against him by the grand jury and required to plead to same when no copies had been served on him.

The indictment was returned on November 14, 1952 and defendant was arraigned November 15th. A copy of the indictment and venire was served on him on November 17th. Our statute requires that the venire and a copy of the indictment be served on the defendant in a capital case at least one entire day before the day set for trial, and that is all the notice to which he is entitled. Title 30, section 63, Code. In the instant case the trial was set for November 26th. 'The law neither requires that the defendant in a criminal case shall have previous notice of the indictment nor a copy of it previous to his arraignment.' Dix v. State, 147 Ala. 70, 41 So. 924, 925. The defendant pleaded not guilty and not guilty by reason of insanity. The record shows the arraignment to be regular in all respects.

2. Local Act No. 118, 1939 Local Acts of Alabama, p. 66, establishing the jury commission of Montgomery County violates section 105 of the Constitution, and the jury commission is without legal authority.

The local act referred to provides that the jury commission of Montgomery County shall be composed of the circuit judges, the judge of probate, the sheriff and the clerk of the circuit court. This act is not violative of section 105 of the Constitution on authority of State ex rel. Brandon v. Prince, 199 Ala. 444, 74 So. 939. In that case a local act which provided that the members of the board of revenue of Tuscaloosa County should constitute the jury commission was held not to violate section 105 of the Constitution.

3. That Negroes are systematically excluded from jury service by the jury commission.

The defendant filed a motion to quash both the indictment by the grand jury and the petit jury panel on the ground that Negroes have been systematically excluded from the jury rolls. Circuit Judge Eugene W. Carter recused himself on the ground that he had become a witness in said cause and Mr. James J. Carter was appointed special judge to try the case.

Circuit Judge Eugene W. Carter and Circuit Clerk John R. Matthews were called as witnesses for the defendant to testify in support of his motion to quash; Circuit Judge Walter B. Jones, James E. Pierce, a Negro school teacher, and D. Caffey, a Negro real estate dealer, were called as witnesses for the State. The testimony of the jury commissioners showed that there was no discrimination as to race or creed and that both races were represented on the panel to try the instant case. The Negro witnesses testified that they had been previously called for jury duty, one having served at least six times, and that they had been requested to furnish names of Negro citizens to the jury commission. Title 30, section 20, Code, requires the names of jurors to be printed on plain white cards all of the same size and texture and printed thereon the name, occupation, place of residence and place of business of the juror. Neither the card nor the actual jury list shows the race of the juror. Defendant showed none of the circumstances to be present which were the basis of the holding in the case of Avery v. Georgia, 345 U.S. 559, 73 S.Ct. 891, nor anything in conflict with our holding in Vaughan v. State, 235 Ala. 80, 177 So. 553. There was no evidence to sustain defendant's motion and it was properly overruled by the court.

4-10. These propositions are concerned with the contentions that Special Judge James J. Carter was without authority to act, and that he did not receive the consent of the defendant as required by section 160 of the Constitution and section 124 of Title 13, Code.

The following is quoted from the record and comes immediately after the recording of the announcement of Judge Eugene W. Carter that he would recuse himself:

'The defendant's attorney and the solicitor were called to the bar in the presence of the defendant, and they stated that the State of Alabama and the defendant had agreed that the Hon. James J. Carter be appointed as Special Judge in the trial of said cause, in accordance with section 124, Title 13 of the 1940 Code of Alabama. The said James J. Carter was called to the bench and was informed of the agreement that he serve as Special Judge in the case, and asked if he would serve. He stated in addition to agreement of counsel he would prefer to have an appointment by the Governor of Alabama to make it doubly sure that no objection be made to his appointment as Special Judge. The defendant's attorney, in the presence of the defendant, stated that at no time would he make any objection to the appointment of James J. Carter as Special Judge.

'Hon. Eugene W. Carter, presiding, thereupon recused himself from sitting at said trial; and the case was then continued for trial until November 28th, 1952.'

The defendant offered no evidence at any time to show that the above statement in the record is incorrect.

The Governor of Alabama did appoint James J. Carter as Special Judge to hear the case, and defendant's attorney agreed and stated he had no objection thereto.

The statutory grounds of disqualification of a judge, section 6, Title 13, Code, are not exclusive so as to eliminate grounds for disqualification under the common law. Ex parte Benson, 254 Ala. 47, 47 So.2d 180. Judge Eugene W. Carter was eminently correct when he recused himself on the ground that he had become a witness. The rule is stated in 48 C.J.S. Judges, § 83(b), page 1068: 'A trial judge should not preside in a case in which he is a material and necessary witness.'

11. Defendant was denied due process of law and denied his constitutional rights because the assistance of a private stenographer was denied his counsel.

On the morning of November 26th, prior to Judge Eugene W. Carter recusing himself, he had ruled that only officials of the court, witnesses and relations of the accused could remain in the court room.

Defendant's counsel stated that Mr. Ira Fred Watson, a private stenographer, was supposed to be present and he wanted Mr. Watson to assist him in the trial. The solicitor objected on the ground that Mr. Watson was not a court official and the court denied counsel's request. However on November 28th, prior to the noon recess and prior to the taking of the testimony of the State's first witness at 2 o'clock p. m., Special Judge James J. Carter presiding, the following took place:

'The Court: What about your motion to have a stenographer assist you? You may have one if you like.

'Mr. McGee: I will not press that. I cannot locate him now.'

12-13. Inculpatory admissions or admissions in the nature of confessions or a confession of actual guilt by defendant were admitted into evidence although defendant offered to show that a previous confession had been obtained from him based on the promise that the only way to keep out of the electric chair was to confess this and another criminal assault.

Certain statements made by defendant to the prosecutrix and a psychiatrist were admitted in evidence. The defendant objected and offered to show that defendant had confessed that he had committed this and other offenses after he had been taken into the room at Kilby prison where the electric chair is located and there told by the deputy warden of the prison that the only way to keep out of the electric chair was to say that he committed the offense. No such alleged confession was ever offered or introduced in evidence. The court permitted the defendant to testify to the above mentioned conversation with the deputy warden but would not allow the...