Reeves v. State

• Decision Date: 21 June 1956
• Docket Number: 3 Div. 751
• Citation: 88 So.2d 561,264 Ala. 476
• Parties: Jeremiah REEVES, Jr. v. STATE of Alabama.
• Court: Alabama Supreme Court

Page 561

88 So.2d 561

264 Ala. 476

Jeremiah REEVES, Jr. v. STATE of Alabama.

3 Div. 751.

Supreme Court of Alabama.

June 21, 1956.

Peter A. Hall and Orzell Billingsley, Jr., Birmingham, for appellant.

John Patterson, Atty. Gen., and Robt. Straub, Asst. Atty. Gen., for the state.

STAKELY, Justice.

Jeremiah Reeves, Jr. (appellant), was indicted by the Grand Jury of Montgomery County for the offense of rape. He was tried before a jury upon a plea of not guilty and a plea of not guilty by reason of insanity. The trial resulted in a conviction. The case was appealed to this court where it was affirmed. Reeves v. State, 260 Ala. 66, 68 So.2d 14. On certiorari to the Supreme Court of the United States the judgment of conviction was reversed. Reeves v. State, 348 U.S. 891, 75 S.Ct. 214, 99 L.Ed. 700.

Appellant was arraigned on November 26, 1952, and on that date pleaded not guilty and not guilty by reason of insanity. When the case came up for trial the second time on May 30, 1955, appellant made a motion for permission to withdraw his former pleas in order to attack the legality of the indictment. A motion of quash the indictment was also filed. On May 30, 1955, a motion to quash the venire drawn on May 16, 1955, was filed. Appellant also filed a motion for the appointment of a lunacy commission. Another motion to quash the indictment was also filed. Appellant also filed a motion to set aside the entire jury box and to declare it void. Appellant also made a motion to allow the public to remain in the court room during the trial and further made a motion that the public be excluded only while the prosecutrix testified. All of the aforesaid motions were denied.

Testimony was taken before the court on the motion to quash the venire on the ground of systematic exclusion of Negroes from jury duty in Montgomery County. The motion was denied and the case went to trial. The jury returned a verdict of guilty and fixed the punishment at death. Counsel moved the court to set aside the verdict and the motion was denied. The court adjudged appellant guilty and sentenced him accordingly. It is from such judgment and sentence that this appeal has been taken.

We see no reason to set out the details of the alleged rape of the prosecutrix and the identification of the appellant as the guilty party. We have read the evidence very carefully in this regard and consider that there was clearly evidence from which the jury had the right to infer that the prosecutrix was raped and that this appellant was the one who perpetrated the act. It should be mentioned here that while on the first trial the questions of an alleged confession and inculpatory statements were raised, these questions are not involved in the instant case. In other words the entire case for the State was testimony tending to show the act which constituted the crime, with the attendant circumstances, and the identification of appellant as the party committing the crime. The defendant denied that he committed the crime and there was testimony tending to show that he was at another place at the time the alleged crime was committed.

I. On this trial of the case the appellant sought to withdraw his pleas of not guilty and not guilty by reason of insanity, which were entered on arraignment in order to permit him to attack the indictment on the ground of systematic exclusion of Negroes on the grand jury. The defendant was represented by counsel at the time the pleas were filed. The competency of counsel then representing defendant is not questioned. We find no error in the court's refusal to allow the aforesaid pleas to be withdrawn. Ordinarily an accused need not be rearraigned upon the second or subsequent trial of his case. We find that in most jurisdictions when a case has been reversed it is not necessary that the defendant be rearraigned. Thomas v. State, 17 Okl.Cr. 550, 190 P. 711; Hamit v. State, 42 Okl.Cr. 168, 275 P. 361; Steen v. State, 97 Tex.Cr.R. 99, 242 S.W. 1047; State v. Farrell, 223 N.C. 804, 28 S.E.2d 560; State v. Hewitt, 206 S.C. 409, 34 S.E.2d 764. In Alabama the courts have placed a limitation upon this rule but this limitation is not important under the facts presented in this case. In Alabama if the indictment is changed by amendment (by agreement) or its scope by the fact that the earlier conviction acts as an acquittal of a higher degree of the offense, the better practice is to rearraign the defendant prior to the second trial. Thomas v. State, 255 Ala. 632, 53 So.2d 340. In the case at bar the indictment has not been changed in any way and once having pleaded to the charge against him, we see no abuse of the court's discretion when the court refused to allow the defendant to reopen the pleading.

In Alabama there are certain statutory regulations with reference to objections to an indictment. In §§ 278, 279 and 286, Title 15, Code of 1940, there are provisions setting forth the method of attacking an indictment. Section 278 provides that the proper method is by plea in abatement. Section 279 provides that in all cases such a plea in abatement must be filed before the plea to the merits. The same is true in section 286. In Clark v. State, 239 Ala. 380, 195 So. 260, it is shown that under the procedural law of this state pleas in abatement must be filed before pleading to the merits or in bar and it is only where the court in its discretion allows pleas to the merits to be withdrawn that pleas in abatement can be filed. The principle here referred to was recently dealt with by the Supreme Court of the United States in Michel v. Louisiana, 350 U.S. 91, 76 S.Ct. 158, 100 L.Ed. ----. In that case the appellant was indicted on February 19, 1953, and was presented to the court for arraignment on February 23, 1953. The arraignment was continued in order that counsel might be secured. In Louisiana the defendant is required to object to the grand jury before three judicial days after its term and in any case before arraignment. The Supreme Court of the United States in holding that the three day limitation was not a denial of due process, said that a motion to quash is normally a short, simple document, easily prepared in a single afternoon. It then appeared that the term of the grand jury which indicted the defendant expired March 2, 1953. The motion to quash the indictment was filed March 9, 1953, five days after the expiration of the term of the grand jury. Counsel contended that they had not been formally appointed until March 5, 1953. The Supreme Court of Louisiana held that counsel had been appointed on March 2 and the Supreme Court of the United States refused to overturn the findings of the Louisana Court. It should be noted that in the Michel case, supra, the ground for challenge of the indictment was the systematic exclusion of Negroes from the grand jury. The state court found that question had been waived by the failure to file the motion to quash at the proper time. The Supreme Court of the United States did not disturb that ruling.

But there is more in this case than waiver by failure to make a timely assertion of an alleged right. As we understand the situation the question of the systematic exclusion of Negroes from the grand jury was raised on the first trial of the case and was before the Supreme Court of the United States. The reversal however by the Supreme Court of the United States was apparently based upon the erroneous introduction in evidence of the alleged confession. This is borne out by the citation of authorities on which the reversal is based. Reference to the opinion of this court in Reeves v. State, supra, as well as the record before the court on the former appeal, of which we take judicial notice, Alabama Water Co. v. City of Anniston, 227 Ala. 579, 151 So. 457, shows that the defendant filed a motion to quash the indictment by the grand jury panel on the ground that Negroes had been systematically excluded therefrom. The defendant called two members of the jury commission as his witnesses in support of the motion. This court held that there was no evidence to sustain the motion. In other words the appellant had full opportunity at that time to present the contention now made.

II. There is another basis which the appellant has advanced, because of which he should be allowed to withdraw his pleas of not guilty and not guilty by reason of insanity, in order that he might now attack the indictment against him. It appears to be the insistence of appellant that the indictment was based solely on evidence before the grand jury of an alleged confession obtained from appellant and since the confession has been held invalid, it is argued that there was no evidence before the grand jury on which it could lawfully return an indictment. We are not impressed with the contention here made.

On the first trial the motion to quash the indictment was based on two grounds, (1) that an invalid confession was used before the grand jury and (2) that Negroes were systematically excluded from the grand jury in Montgomery County. The court denied the motion. It is obvious, therefore, that on the first trial the indictment was attacked because of the use before the grand jury of an invalid confession, the change from the original attack now being that the invalid confession is the sole evidence on which the indictment was found. We think it is clear that the appellant had every opportunity to seek to quash the indictment for any reason growing out of the confession and that it comes too late for him now to complain of the invalidity of the indictment. Authorities supra.

Cases such as Allen v. State, 162 Ala. 74, 50 So. 279, cited by appellant, are not in point. In this line of cases the indictment did not meet the requirements of what is now § 419, Title 14, Code of 1940. This statute applies only to seduction cases. The present case is not a seduction case.

The original indctment is not in the present record because the court did...