Thompson v. State

• Decision Date: 07 June 1899
• Citation: 122 Ala. 12,26 So. 141
• Parties: THOMPSON v. STATE.
• Court: Alabama Supreme Court

26 So. 141

122 Ala. 12

THOMPSON v. STATE.

Supreme Court of Alabama

June 7, 1899

Appeal from circuit court, Madison county; H. C. Speake, Judge.

Albert Thompson was convicted of rape, and he appeals. Reversed.

The defendant filed his motion for a change of venue, assigning as grounds for said motion "that he could not get a fair trial in said county, for the reason that he is charged with a most heinous crime; that the prosecuting witnesses reside in said county, and that the defendant is a stranger in said county; and that he has been informed, and so believes, that efforts have been made at different times to raise a mob for the purpose of taking the life of the defendant, without giving him an opportunity to be heard before a lawful jury." To this motion the state demurred, on the ground that it sets up no sufficient reason for granting the defendant a change of venue. This demurrer was sustained, and thereupon the defendant filed another motion for a change of venue, assigning as grounds for said motion that the defendant was a negro and a stranger in said county, while the prosecutrix was a resident of said county, and had a number of friends and relations therein; that the defendant had been published in the newspapers of said county "as the villain who committed the deed," and also as "the brutal negro who assaulted a respectable white woman"; and, further, that the daily newspaper in the town from time to time gave out articles entreating the people not to resort to mob violence, but to let the law take its course. The state demurred to this motion, on the ground that it set forth no sufficient ground for the change of venue. This demurrer was sustained, and the defendant duly excepted. Thereupon the defendant amended his motion by adding thereto, by averments, "that the defendant was a private in the 10th cavalry regiment (colored) of the United States army, and while with said regiment, during a period of two or three months next prior to the commission of said offense and in the community where the same is alleged to have been committed, many members of said regiment conducted themselves so disorderly and offensively, towards both civilians and other soldiers in said community, and committing various crimes, until a deep-seated prejudice has been fixed in the minds of the people against said entire regiment, including the defendant, and a general condemnation of same now prevails throughout the county, until the trial of defendant cannot be entered into in said county with a fair presumption of innocence." A demurrer upon same grounds as those interposed to other motions was sustained and to this ruling the defendant duly excepted. The defendant then moved to quash the special venire of the petit jurors drawn for the trial of said cause, upon the ground that the jury commissioners had failed to comply with the plain mandates of the law, in that they omitted placing upon the lists and slips drawn by them, when filling the jury box and selecting the jury, the occupation of said jurors, when known to them. The defendant also moved to quash the special venire drawn for the trial of the defendant upon the same ground. The state demurred to each of these motions, the court sustained the demurrer, and disallowed each of said motions. The defendant also moved the court to quash the indictment upon the ground that the grand jury that preferred the same was not drawn as required by law, in that (1) the jury commissioners did not place on the lists prepared, from which names were taken to fill the jury box, the occupation, when known, of each person, as required by law; (2) the jury commissioners, when they began to fill the jury box destroyed all the names that were in the box at that time and, at the time the grand jury was drawn, the commissioners had not completed their work of filling said boxes; (3) the jury commissioners drew more than 21 names for grand jurors and from that list selected the names from which the grand jury was made up; (4) the grand and petit jurors were drawn at one and the same time, and the jury commissioners determined which persons so drawn should serve on the grand jury and which should serve on the petit jury. The state demurred to this motion, which demurrer was sustained, and said motion was overruled and disallowed.

The state introduced Callie King, the person assaulted, who testified to the commission of the offense charged, and that the defendant, to accomplish his purpose, leveled a pistol at the witness and choked her. This witness further testified that, after the commission of the deed, she woke up a little negro girl, who was sleeping in the room with her, and they locked themselves up in the kitchen until her husband's return, in the morning after the commission of the deed between 9 and 11 o'clock the night before, and that upon her husband's return she told him all that had been done. It was also shown by the testimony that a man by the name of Walker lived within about 10 feet of the prosecutrix.

Upon the introduction of the husband of the person assaulted as a witness, he testified that he was a hack driver, and was out the night of the commission of the offense until about 2 o'clock; that when he returned home he found his wife locked in the kitchen, and that, upon her telling him that she had been outraged, he told her that she was dreaming, and that she must be mistaken, and, upon her insisting that she was not, he went to the house of one Barney Meehan, and asked him what to do about it; that said Meehan told him "to wait till morning, and I then went back home, having told him what my wife said." The defendant moved to exclude the testimony of the witness as to what Meehan said to him, on the ground that the defendant was not present. The court overruled the motion, and to this ruling the defendant duly excepted.

Upon Barney Meehan being introduced as a witness for the state, he testified as follows: "Mr. King came to my house some time before day, crying, and told me what had been done to his wife, and asked my...