Vaughn v. State, 1 Div. 946
| Decision Date | 09 December 1937 |
| Docket Number | 1 Div. 946 |
| Citation | 177 So. 553,235 Ala. 80 |
| Parties | VAUGHN v. STATE. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Mobile County; Joe M. Pelham, Jr., Judge.
R.P Vaughn, alias Albright, was convicted of murder in the first degree, and he appeals.
Affirmed.
Rosa Gerhardt, of Mobile, for appellant.
A.A Carmichael, Atty. Gen., and Clarence M. Small, Asst. Atty Gen., for the State.
The appellant was indicted by a grand jury of Mobile county, at its October, 1936, sitting, for the offense of murder in the first degree.
Upon his trial on this indictment, the appellant was convicted of murder in the first degree, and his punishment fixed at death by electrocution. From this judgment and sentence the appellant brings this appeal.
For this same offense, the appellant had been previously indicted by a grand jury of said county, and upon trial under said indictment the appellant was convicted of murder in the first degree, and his punishment was then fixed at death. From that judgment and sentence the appellant prosecuted an appeal to this court. On that appeal we reversed the judgment of conviction, and remanded the cause. R.P. Vaughn, alias Albright, v. State, 232 Ala. 594, 168 So. 668.
Upon the reversal and remandment of the cause, a new indictment, the one now before us, was returned by the grand jury of Mobile county, and it was upon this last indictment that the appellant was tried and convicted.
The appellant, defendant in the court below, on October 20, 1936, while said indictment was pending against him, filed a plea in abatement to the indictment, and motion to quash the same. Attached to said plea were the affidavits of four citizens of Mobile county.
The plea in abatement and motion to quash the indictment are predicated upon the ground that the appellant is a "negro of the African race," and that "the indictment found against him was and is null and void and without legal effect, and was found against him in a manner and by methods contrary to law, in that persons of the negro race, duly qualified under the laws of the State of Alabama to serve as members of the grand jury that found the said indictment, were excluded from the list from which the said grand jury, was drawn, and from the said grand jury, solely by reason of their race and color." There were other grounds stated, but they were all, in legal effect, the same as the above-quoted ground.
We have heretofore held that such plea and motion was good, and the lower court so held. Millhouse v. State, 232 Ala. 567, 168 So. 665; Vaughn v. State, supra.
On the hearing of said plea in abatement and motion, the defendant read in evidence the affidavits of Dr. J.A. Franklin, Dr. P.W. Goode, Rev. E.B. Bizzell, and Rev. J.D. Cauthen, and certificate of Mrs. Marie B. Owen, director of the Alabama State Department of Archives and History, showing the population of Mobile county, the number of whites and the number of negroes, also the number of white males and negro males, and also called and examined as a witness in his behalf H. Austill Pharr, and John Shearer, two of the jury commissioners of Mobile county, and also E.H. Dolbear, the secretary of the board of jury commissioners. The State called and examined W.B. Blackman, a deputy sheriff of Mobile county, George Herman, and L.C. McCreary, one of the court bailiffs.
Mr. Pharr, one of the jury commissioners, called by defendant, testified, in substance, that he had served as a member of the jury commission for the last past five years, that the board had made an honest and diligent effort to obtain the names of all qualified citizens, white as well as negro, for jury service, and that they had placed the names of such qualified persons on the list, and in the jury box; that there had been no exclusion of negroes from the list and box because of race or color during the last past five years. He further testified: The testimony of this witness shows that negroes have been serving on the juries of Mobile county during the past five years, and that the names of negroes are now on the jury roll, and have been for the past five years.
To the same effect was the testimony of Mr. Shearer, the other jury commissioner summoned and examined by the defendant.
Mr Blackman, a deputy sheriff, testified to the...
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