Wyatt v. State, 2 Div. 791

• Decision Date: 10 January 1950
• Docket Number: 2 Div. 791
• Parties: WYATT v. STATE.
• Court: Alabama Court of Appeals

Page 837

46 So.2d 837

35 Ala.App. 147

WYATT v. STATE.

2 Div. 791.

Court of Appeals of Alabama.

Jan. 10, 1950.

Rehearing Denied Feb. 7, 1950.

Jas. A. McCollum and Walter G. Woods, of Tuscaloosa, for appellant.

A. A. Carmichael, Atty. Gen., and L. E. Barton, Asst. Atty. Gen., for the State.

HARWOOD, Judge.

This appellant stands convicted of the offense of rape, the alleged offended girl being appellant's fourteen year old daughter Mary Leona Wyatt.

In the court below appellant filed a plea in abatement to the indictment, and a motion to quash same, each asserting substantially the same ground.

The plea in abatement challenges the validity of the indictment because 'one of the persons who prepared the jury roll and cards required by Title 30, Section 20 of the 1940 Code of Alabama was not qualified to act in that respect and was not a qualified elector of Hale County, Alabama at the time he assisted in preparing said jury roll and cards * * *'; that the clerk of the jury commission which prepared the jury roll was at the time Register in Chancery of Hale County, Alabama, for which he received compensation; that the jury box was refilled before the jury box was exhausted; that all laws passed subsequent to 1910 were passed by illegal legislatures, in that the legislature had not been reapportioned as provided in the Constitution of 1901. §§ 198-203.

The State's demurrer to said plea was properly sustained. The grounds asserted are vague and uncertain, or frivolous, or mere conclusions of the pleader, and fail to assert that the grand jurors who found the indictment were not drawn by the officer, and in the presence of the officers designated by law to draw the same. Sections 278 and 285, Title 15, Code of Alabama 1940, and cases cited thereunder; Orr v. State, 236 Ala. 462, 183 So. 445.

The State's motion to strike the motion to quash was properly granted. Sections 278, 285, supra.

The appellant also filed a motion to quash the venire of petit jurors, and assigned as grounds therefore substantially the same grounds as assigned in support of his plea in abatement to the indictment. The State's demurrer to the motion, and its motion to strike were properly sustained and granted. Section 46, Title 30, Code of Alabama 1940.

Upon the State's demurrers to his first motion to quash the venire of petit jurors being sustained the appellant filed a second motion to quash the venire on the ground that it was not drawn by the presiding judge of the Fourth Judicial Circuit, but by the associate judge thereof. The State's motion to strike the motion No. 2 of appellant was properly granted. Section 30, Title 30, Code of Alabama 1940, specifically provides that any one of the judges of a circuit having more than one judge may draw the grand and petit juries from the box.

Appellant's demurrer to the indictment was likewise properly overruled, the indictment being in Code form. The substitution of the word 'girl' for 'woman' as prescribed by form 89, Section 259, Title 15, Code of Alabama 1940, does not render the indictment bad. Almon v. State, 21 Ala.App. 466, 109 So. 371.

Prior to entering upon trial appellant also moved for a continuance upon the grounds that certain newspaper publicity vicariously connected with this case would prevent appellant from receiving a fair and impartial trial at this time.

Evidence was heard upon this motion, upon completion of which the court denied the motion.

The question of granting a continuance addresses itself to the enlightened discretion of the trial judge. We find no basis whatsoever for disturbing his ruling in this instance. Morris v. State, 193 Ala. 1, 68 So. 1003; Wilson v. State, 31 Ala.App. 21, 11 So.2d 563.

The evidence presented by the State tends to show that on 24 July 1949 the appellant, accompanied by his daughter Mary Leona, and his wife and baby had driven from his home into Moundville. On the return trip from Moundville they picked up a young girl named Evelyn Tingle, about eleven years of age, who accompanied the party to appellant's home.

According to Mary Leona the appellant, during the journey, made improper advances toward her, and in vulgar and obscene language expressed an intention of having sexual intercourse with her, and told her that he was 'going to treat her as his wife,' and that 'it never hurt a woman he knew of to treat her like that.'

After they had returned and entered the house the prosecutrix testified that the appellant, after threatening her with a stick, pulled her into a bed room and pushed her down onto a bed, and thereupon attempted to have intercourse with her. Although the sexual act was not completed, the prosecutrix testified definitely that appellant succeeded in accomplishing a penetration.

The wife of the appellant, and mother of the prosecutrix, sought to intervene. The appellant secured a shotgun and threatened to kill her. The prosecutrix's testimony was to the effect that she submitted to appellant on condition that he would not shoot her mother.

During this melee the prosecutrix and her mother ran from the house, and went towards the home of Guthrie Wyatt, father of the appellant, who lived about 235 yards away.

The appellant followed and met Guthrie Wyatt a short distance from the latter's home. Guthrie sought to calm appellant, and appellant insisted he was going to make his wife and daughter return and cook his supper. Guthrie Wyatt invited appellant to eat at his house. Appellant and Guthrie Wyatt, who testified as a witness for appellant, recounted that a fight ensued between the two. Who struck the first blow, or what caused the fight is not clear from the record. At any rate, Guthrie Wyatt obtained a piece of wood and struck appellant a rather severe blow on the head.

In order to give a logical sequence to the facts we will interpolate at this point certain evidence developed during the trial by examination of witnesses for the defendant.

It appears that following the fight between appellant and Guthrie Wyatt that Guthrie Wyatt and his wife, accompanied by another son, Aaron Wyatt, and Aaron's wife and children drove into Greensboro where a warrant for appellant, in connection with peace bond proceedings, was secured. This was a Saturday night. The following Monday a hearing was held on the peace bond proceedings before Honorable R. K. Greene, Probate Judge of Hale County. At this hearing Idella Wyatt, wife of appellant, testified as a witness in support of the issuance of the peace bond.

Reverting to the evidence presented by the State in the trial below, it appears that Mrs. Idella Wyatt was subpoenaed as a witness for the State.

She was called into the court room following a statement by the Solicitor that she had been advised of her privilege of not testifying against appellant, her husband, and that she had stated she claimed such privilege. The Solicitor then requested that the court explain the matter of the privilege to Mrs. Wyatt, so that the State might know if she would be available as a witness then, or at a later stage of the trial.

The court thereupon explained the law applicable to the situation to Mrs. Wyatt and she stated she did not intend to testify against her husband.

The defendant thereupon objected 'to those questions in the presence of the jury,' and moved for a mistrial. The motion was overruled. During the colloquy ensuing the Solicitor made the following statement to the court:

'Mr. Gewin: I would like to make this statement:

'Mrs. Wyatt was served with a subpoena from this Court. Upon entering the Court Room we announced in the presence of the defendant and his counsel she had a subpoena and she had refused; and we wished to bring her in or let the Court bring her in and explain it. The defendant and counsel were present. They made no objection. We would have been delighted to have the jury go out; but it was known to them at that time and they said nothing.

'I would like for the record to show that.'

The State then offered as a witness Judge R. K. Greene, who testified that on July 24, 1948 the above mentioned peace bond proceedings were heard before him as presiding judge; that the appellant was present and cross examined each and every witness presented against him; that among such witnesses was Mrs. Idella Wyatt, and the proceedings had been held as soon as convenient at Mrs. Wyatt's request; that he advised Mrs. Wyatt of her privilege of not testifying against her husband, and she stated she wished to testify; that the testimony was not taken down or transcribed, but that he remembered the substance of Mrs. Wyatt's testimony.

Over appellant's objection Judge Greene stated that Mrs. Wyatt had testified that on the afternoon in question she, the appellant, and the prosecutrix had gone to Moundville; that on the way back the appellant had jerked up prosecutrix's dress and obscenely expressed his intention to have sexual intercourse with her that night, and had told Mrs. Wyatt 'and if you say anything about it I am going to kill you and kill her too.' Upon her telling appellant not to talk that way he replied 'I am going to do it. I have done it before, and I am going to do it tonight. I will kill both of you if you tell it.'

Concerning Mrs. Wyatt's testimony as to the occurrences after they reached their house, Judge Greene testified as follows: 'She said he ran the small children, told them to get out of the house, and he took the girl in the other room and told her not to come in, but she did go in, and opened the door, and he was on top of the girl at that time on the bed; and that he jumped up and grabbed a shotgun that was on the wall and said, 'I told you not to come in here; and she ran out with her baby in her arms, and ran through the yard at her father-in-law's, Guthrie Wyatt's, and by the yard and ran to the woods.'

Mr. B. W. Coleman, Sheriff of Hale County, and who was present at the peace bond hearing, over appellant's objections gave...