Edwards v. State , 49 Ala. 334 ( 1873 )

BBICKELL, J.

— 1. At common law, and by constitutional and statutory provision, all crimes are local. The grand jury inquiring and making presentment of them, and the jury finally trying, must come from the vicinage, — by which is intended the county of their commission. Yet, at common law, the necessity and right of removal of the final trial, when a fair investigation could not be had and an impartial judgment obtained in the county in which it is alleged the offence was committed, was fully recognized. It is said the allowance of such removal was part of the inherent common law jurisdiction of the court. It was exercised at the instance of the prosecutor, as well as in favor of the accused. In cases of felony, the power was exercised with great caution, and only when it seemed to be indispensable to an impartial administration of justice. King v. Holden, 5 Barn. & Ad. 347 ; 1 Bishop’s Cr. Procedure, § 108. In this country, statutes have been passed in most of the states, regulating the exercise of this power of removal. These statutes are intended rather to declare and define the power, and the mode of its exercise, than to abrogate the common law principle. Of necessity, under the constitutional guaranty, they limit the right to the accused, and thus far depart from the common law. Sometimes the statute declares the right of a removal, on a proper application, absolute in the accused; sometimes the application is, in terms, committed to the discretion of the court; and sometimes, as in our statute, it is only declared that the accused, on a prescribed application, may have the trial removed. Without regard to the language employed in the statute, we have not found any authorities, holding the refusal of a removal as pertaining to that character of discretion which is not the subject of revision on error, except the former decisions of this Court, which were expressly overruled by Ex parte Chase, 43 Ala. 303. The rule prevailing at common law, and which seems to prevail with singular uniformity in the different states, is, that a judgment of conviction, in criminal cases, should not be reversed because of the refusal of the primary court to grant the accused a removal, unless it clearly appears from the record that a proper application was made and improperly refused. 1 Bishop on Criminal Procedure, §§ 108-116. The presumption all appellate courts indulge in favor of the action of primary courts is here indulged. The appellate court must see that the primary court has erred. It is not enough that it may not appear clearly its action was right. We must see, and see clearly, that it was wrong. Duckworth v. Butler, 31 Ala. 164; Griffin v. Bland, 43 Ala. 542. We have carefully examined the affidavits produced on the application for a removal of the trial, and we cannot say we see clearly that the City Court erred in refusing it. All the facts stated in the application of the appellant are denied by the counter affidavits, except as to the newspaper publications. In these publications we discover nothing calculated to inflame the public mind, and stir up that degree of prejudice which would prevent or obstruct an impartial trial. They seem to us to be nothing more than the passing comment a newspaper usually bestows on such an event as the apprehension and detection of one who came near consummating a fraud, and not calculated to produce a lasting impression of the event itself. They bear no resemblance to the inflammatory publications which were the subject of consideration in Ex parte Banks (28 Ala. 28) and Ex parte Chase, supra. Not being able to see clearly that the court erred in refusing the application for a removal of the trial, its judgment on that point cannot be reversed.

2. The next objection urged to the judgment of conviction is, that the jury were sworn “ well and truly to try the issue joined,” omitting the words, “ and true verdict render according to the evidence.” This is the precise objection made and overruled in the ease of McNiel v. State, at the January Term, 1872. See, also, Bill Gardner v. State, at the June Term, 1872. We are content to abide these decisions.

3. Turning to the bill of exceptions, the first exception is, that secondary evidence of the ’ check given by appellant to Miller was received, no proper predicate for its introduction having been laid. If it was admitted that this evidence was objectionable when it was received, the destruction of the check, while in the possession of the appellant, being subsequently shown, the error of its admission was thereby cured. The rule on which this court has uniformly acted is, that if evidence primd facie, irrelevant or inadmissible, becomes relevant or admissible at any stage of the cause, its admission is not an error which will operate a reversal, although when offered and received it was inadmissible. Robinson’s Adm’r v. Allison, 36 Ala. 525; Johnson v. State, 29 Ala. 62; King v. Pope, 28 Ala. 601.

4. It is certainly true, that an indictment for obtaining money, or other thing of value, under false pretences, should aver with reasonable certainty the thing obtained, and that the evidence should correspond substantially with the averment. In this indictment the allegation is, that the appellant obtained “ five hundred dollars in money of the currency of the United States;” and the evidence offered was, that he obtained five hundred dollars in “ National Bank notes.” It is strenuously urged by the counsel of .appellant, that this evidence does not satisfy, and is variant from the allegation. The rule, as stated by Archbold, is : “ If the indictment state an obtaining of ‘ money,’ the allegation, so far as regards the description of the property, shall be sustained by proof of any amount of coin, or of any bank note, although the particular species of coin of which such amount was composed, or the particular nature of the bank note, shall not be proved.” 3 Archbold’s Cr. Pl. 471, 472. Applying this rule, there was no variance between the evidence and allegation, and the evidence satisfied the indictment.

We have considered all the matters in the bill of exceptions, and all presented by the record. There is no error authorizing a reversal, and the judgment of the City Court is affirmed.