Wright v. State

• Decision Date: 06 February 1912
• Citation: 58 So. 68,3 Ala.App. 24
• Parties: WRIGHT v. STATE.
• Court: Alabama Court of Appeals

58 So. 68

3 Ala.App. 24

WRIGHT v. STATE.

Court of Appeals of Alabama

February 6, 1912

Appeal from Circuit Court, Wilcox County; B. M. Miller, Judge.

Charlie Wright was convicted of murder in the second degree, and he appeals. Reversed and remanded.

The defendant filed a plea in abatement under the circumstances set forth in the opinion, which plea is as follows: "(1) Because the grand jury which found the indictment in this case was not legally drawn. (2) Because at the time of the drawing of said grand jury by the judge of this court the name of Edward H. Carter was in the hat from which the judge drew said grand jury, when Edward H. Carter had been drawn and summoned as a juror for this court, but had been excused previous to the drawing of said grand jury from said hat by said judge. (3) Because the judge of this court drew from the hat in forming said grand jury the name of Edward H. Carter when said Carter had been drawn and summoned as a juror for this term of the court, but had been previously excused by the judge of this court. (4) Because the judge of this court in forming the grand jury, drew from the hat, supposed to contain all of the names of the jurors drawn and summoned for week and not excused, 19 names, instead of 18, as required by law. (5) Because the nineteenth name drawn from said hat in forming the grand jury was Frank B. Dexter, and said Dexter served on the grand jury which found this indictment. (6) Because the presiding judge who drew the name of said grand jurors from said hat was himself under bond to await the action of said grand jury. (7) Because the presiding judge who drew and organized said grand jury was, at the time of the drawing of the names of said grand jury from the hat under bond to answer to a charge of violating the game laws of Alabama, which was to come before said grand jury for investigation. (8) Because the presiding judge who charged said grand jury was at the time under bond to await their action on a misdemeanor charge." The motion to quash was based on the same grounds.

Godbold & VanDeVoort, for appellant.

R. C. Brickell, Atty. Gen., and W. L. Martin, Asst. Atty. Gen., for the State.

PELHAM, J.

Upon being arraigned on an indictment charging murder in the first degree, the defendant entered a plea of not guilty; but afterwards, and before the jury to try the case was selected the defendant, through his counsel, asked leave to withdraw the plea of not guilty theretofore interposed and file a plea in abatement to the indictment and motion to quash the same, and out of this request a colloquy arose between counsel for the defendant and the presiding judge, and the bill of exceptions sets out the remarks of counsel for defendant and the comments of the presiding judge at some length, showing the existence of undesirable friction in the proceedings that is not unknown to conditions growing out of the heat of conflict sometimes attendant upon strenuously contested trials at nisi prius. But, while the presiding judge allowed the plea proposed to be filed, and affidavits in support thereof to be read and considerable argument and comment to be indulged in, it is not shown that the court permitted the defendant to withdraw his plea to the merits and file the plea in abatement, and this is a matter in the irrevisable discretion of the trial court. Crawford v. State, 112 Ala. 1, 12, 21 So. 214. Moreover, there was no error in striking the plea on the state's motion, even if it be considered properly filed, as it was without merit. The plea alleged no fraud in drawing the jury (Acts 1909, p. 317, § 29), and the grounds set up going to the competency of the trial judge were frivolous; nor could they be set up by plea. Spradling v. State, 17 Ala. 440, 444. As far back as 1 Stewart, in the case of Lyon v. Bank, page 442, it was held that the competency of a judge to try a cause cannot be raised by the defendant at the trial by way of challenge or plea. "If the right be admitted," says the court in the opinion in that case (page 465), "the courts are subject to frequent annoyance of the most disagreeable kind, and their authority weakened and abused by frivolous or imaginary objections to the person of the judge."

The defendant's motion to quash the indictment, based on the same grounds as set up by plea in abatement, is subject to the same criticism. The ground assigned going to the illegality of the indictment, because the judge who drew and organized the grand jury was under bond to await the action of the same grand jury, under a charge of having committed a misdemeanor in violating the state game laws, is without merit. To hold that such a charge made against the judge rendered all the indictments returned by the grand jury, whose duty it was to investigate the charge, invalid would, in effect, be holding that to prevent a valid indictment and escape punishment altogether it would only be necessary for a person guilty of the most heinous crime to prefer some misdemeanor charge against the presiding judge requiring an investigation by the grand jury, and to continue the practice before each successive grand jury having jurisdiction. The trial judge was not disqualified; nor was there any impropriety in his presiding over the trial of the defendant, charged with murder, by reason of the fact that he had been charged with, or was in fact guilty of, a misdemeanor in violating the game laws, and this is true, even though the same grand jury had investigated the charge against the judge that returned the indictment against the defendant. Such a fact would not even remotely connect the judge with the prosecution, or render him less able to hold the scales of justice in even balance between the defendant and the state on the trial of the defendant for murder. Neither the disqualifications specified by the statute (Code, § 4626) nor those imposed by the common law existed under the facts presented, and being qualified it was his duty to preside at the trial; and to have recused himself under such circumstances would have been an evasion of official duty--a duty which he could neither delegate nor repudiate. Ex parte Bar Association, 92 Ala. 113, 8 So. 768, 12 L. R. A. 134.

The defendant was indicted for killing a woman, Sallie Bell alias Brown, and the evidence introduced by the state would lead to the conclusion that it was the theory of the state that the defendant and deceased, at the time of the killing, or a short time prior thereto, had been living together and maintaining unlawful relations. It was therefore competent to prove, as tending to show a motive for the killing, that the defendant and deceased had been living together, that the deceased had moved off to another place, and that the defendant had been seen going to the home of the deceased, where she was killed, on different occasions a short time before. The testimony of the witness Harriet Blunt regarding the manner in which the defendant and deceased had lived a year or more previous, and before the witness went to Washington county, was excluded by the...