Welch v. State

• Decision Date: 10 May 1938
• Docket Number: 7 Div. 283.
• Citation: 183 So. 879,28 Ala.App. 273
• Parties: WELCH v. STATE.
• Court: Alabama Court of Appeals

183 So. 879

28 Ala.App. 273

WELCH v. STATE.

7 Div. 283.

Court of Appeals of Alabama

May 10, 1938

Rehearing Denied June 30, 1938.

Appeal from Circuit Court, Talladega County; R. B. Carr, Judge.

Homer Welch was convicted of manslaughter in the first degree, and he appeals.

Affirmed.

Certiorari denied by Supreme Court in Welch v. State, 7 Div. 524, 183 So. 886.

Beddow Ray & Jones, of Birmingham, for appellant.

A. A. Carmichael, Atty. Gen., and Chas. L Rowe, Asst. Atty. Gen., for the State.

SAMFORD Judge.

The defendant, together with 11 others, was indicted by the grand jury of Talladega county on a charge of murder in the first degree. When the cause was called for trial the defendant moved for a severance, which motion was granted, and this defendant, alone, was placed on trial.

At the time of trial, and in accordance with the statute, the defendant made his motion for a change of venue in accordance with section 5579 of the Code of 1923, setting forth specifically the reasons why he could not have a fair and impartial trial in Talladega county, the county in which the indictment is found. The motion was in legal form and meets all of the requirements of the statute.

Issue was joined on this motion, and after hearing the evidence both for the movant and the State, the motion was denied. This act of the court is made the basis of an insistence that the judgment in this case should be reversed and the cause remanded.

Bearing in mind the statute which provides that: "The refusal of such application may, after final judgment, be reviewed and revised on appeal, and the supreme court or court of appeals shall reverse and remand or render such judgment on said application, as it may deem right, without any presumption in favor of the judgment or ruling of the lower court on said application," we have proceeded to a consideration of the question from the evidence as it is presented by the bill of exceptions.

The crime, if committed at all, having been committed in Talladega county, the venue is legally there, and the presumption is that the defendant would have, at the hands of duly constituted authorities, a fair and impartial trial according to the forms of law. The burden is upon defendant to prove that this is not true, and this must be shown to the reasonable satisfaction of the court. Notwithstanding the statute which makes it the duty of this court to review and revise on appeal, the action of the trial court in refusing to grant an application for a change of venue--"without any presumption in favor of the judgment or ruling of the lower court on said application," the rule which fixes the burden upon the defendant to show to the reasonable satisfaction of the court that an impartial and unbiased verdict cannot be reasonably expected is not changed. In Crowder v. State, 18 Ala.App. 632, 93 So. 338, it was said (page 339): "Under the provisions of an act entitled an act 'to amend section 7851 of the Code of Alabama,' approved August 26, 1909, it is made the duty of this court to review and revise, on appeal, the action of a trial court in refusing to grant an application for a change of venue 'without any presumption in favor of the judgment or ruling of the lower court on said application.' Acts Special Session 1909, p. 212. In thus reviewing the matter, however, the rule is not changed that the burden is upon the defendant to show to the reasonable satisfaction of the court that an impartial trial and an unbiased verdict cannot be reasonably expected." Baker v. State, 209 Ala. 142, 95 So. 467; Malloy v. State, 209 Ala. 219, 96 So. 57.

The evidence on the question is very voluminous, including many affidavits from citizens of Talladega county in every walk of life. And, without going into details relative to this evidence, this court is clear to the conclusion that the defendant has not met the burden of proof, and from the evidence adduced it appears that defendant could obtain such fair and impartial trial as the law guarantees within the county of the venue, and that the trial judge committed no error in denying the motion.

The defendant then filed a plea in abatement, setting forth the fact that there was then pending a prior prosecution of this defendant for the same acts and upon the same charge, as that charged in this indictment, upon an indictment returned into court by the grand jury prior to the time the indictment in this case was returned and filed. On motion of the solicitor this plea was stricken. Such a plea in abatement is not an answer to the indictment in this case. If, as matter of fact, there were two cases of the same kind and character, the trial and determination of the one might be pleaded in bar of a prosecution in the other, but the pendency of the one could not abate the prosecution of the other. Treadaway v. State, 18 Ala. App. 409, 92 So. 529; Whitaker v. State, 21 Ala.App. 114, 105 So. 433.

At the beginning of the trial the defendant filed his motion to quash the venire, on the ground that the jury box from which the venire was drawn had been prepared in a manner contrary to law and that the filling of said box was tainted with fraud; in that, the jury commission intentionally and purposely failed at the time said jury box was filled, and when the jury roll from which said box was filled was made up, to include in said jury roll the name of each and every person in said county whom they had found to possess the qualifications requisite for jurors in said county; that there are more than 3,000 persons qualified to perform jury service in Talladega county; that the jury commission placed only about 1200 names in the said jury box, selecting said 1200 names from among persons whom they knew, or had reason to know, or had a well grounded belief, were interested in procuring the conviction, or were desirous of procuring the conviction of this defendant in this trial; that said jury box was filled by said jury commission subsequent to the finding of this indictment and approximately 30 days prior to the time the venire summoned for this trial was drawn from said jury box; that the jury commission in filling said jury box fraudulently included a large and disproportionate number of names in said box of men who were actively and financially interested in financial institutions having an affinity of interest with the Samoset Cotton Mills, with deep-seated prejudice against union labor, and fraudulently refused to include in said box the names of persons who were qualified as jurors, but who were known to possess sympathy for, and understanding of, the problems of the working man; that said jury commission fraudulently included among said names a large and disproportionate number of names of persons who were employed by or officially connected with the offices of local county officers, or were closely affiliated with county officers whom they knew to be opposed to the principles of union labor, and whom they knew to be angered and resentful over the death of the chief deputy sheriff, and whom they knew to be unsympathetic with the principles of union labor, and included in said list a large and disproportionate number of names of those who were employed by banking institutions and by cotton mill corporations in an executive or supervisory capacity, and fraudulently failed or refused to include in said 1200 names a fair proportion of names of those who were employed as laborers or in subordinate positions in said cotton mills or other institutions where the workmen were known or supposed to be sympathetic with the principles of union labor.

Demurrer to the motion to quash was overruled, and issue thus formed on the motion to quash was joined.

After hearing the evidence on the motion, the court overruled the same, and that action of the court is here insisted upon as error.

On the trial of the issue raised by the motion to quash, it was recognized that section 8637 of the Code of 1923 governs, and that no objection could be taken to the venire, except for fraud in drawing or summoning the jury.

It may be admitted that the action of the jury commission in filling the jury box with only 1056 names, whereas there were more than 3000 citizens of Talladega county qualified as jurors under the law, was such an irregularity as would entitle a party in interest to a writ of mandamus to compel the jury commission to fill the box in accordance with the statute ( Bell v. Terry, 213 Ala. 160, 104 So. 336), but, in the absence of proven fraud on the part of the jury commission, the venire in this case could not be collaterally attacked. Such is the holding in Garner v. State, 206 Ala. 56, 89 So. 69; Bell v. Terry, supra; Reeves v. State, 17 Ala.App. 684, 88 So. 197; Morris v. State, 18 Ala.App. 135, 90 So. 57.

Much evidence was introduced on the issue raised by the motion to quash, all of which has been carefully read and considered by this court. We do not find that the evidence sustains the charge of fraud, and for that reason we hold that the trial judge was not in error in overruling the motion.

After the overruling of the motion to quash, the defendant moved for a continuance of the case, which motion was, by the court, overruled. It has been so often held that, the granting of continuances by trial courts is peculiarly within the discretion of the trial judge, and that this discretion will not be reviewed, except in cases where it clearly appears that there has been an abuse of his power, it is unnecessary for us to say more, than that from this record we cannot say that the trial judge abused his discretion in requiring the defendant to go to trial.

In presenting argument that the trial court had abused its discretion in refusing to grant a continuance to this...