Byers v. State , 105 Ala. 31 ( 1894 )

HARALSON, J.

L. In an application for a change of venue in a criminal case, the statute (Code, § 4485) requires the defendant, to state in his application to the court, “specifically, the reason why he can not have a fair and impartial trial in the county in which the indictment is found, * * * and [it] must be made as early as practicable before the trial, or may be made after conviction, on a new trial being granted, and the refusal of such application may, after final judgment, be reviewed and reversed on appeal.” The word ‘‘trial,” as employed in the statute, means, as has been elsewhere held, “the investigation of a matter in issue between opposing parties before a tribunal competent to decide upon it;” and that, “in a criminal case the term does not include the arraignment, or any other merely preparatory proceeding which may be taken prior to the time of administering the requisite oath to the'jury.” Hunnell v. The State, 86 Ind. 434; United States v. Curtis, 4 Mason, 232, 237; Price v. The State, 4 Gill, 297; Rapalje Or. Pro., § 159. When the statute uses the term, “as early as practicable before the trial,” without more, it would mean, that unless the application is made before the trial is entered upon, and as early theretofore as practicable, the right is waived ; but, that provision is followed by the other — “or it may be made after conviction, on a new trial being granted.” Construing both provisions together, it would seem, that the defendant is not cut off, absolutely, from making the motion, if not done before the trial begins, but, that he must do so “if practicable,” — that is to say, if before the trial, he had been aware of the facts upon which he bases his application, and has had time and opportunity to present them to the court, he must have done so. If he fail to make application before the trial, having had the opportunity, it is incumbent on him, to show sufficient excuse for the delay. — 3 Amer. & Eng. Encyc. of Law, 102, § 5, and authorities cited. It may appear that the grounds for the change originated after atrial, and may not have existed before, in which case, on a new trial being granted, by requirement of the statute, the application stands on the same footing as if made before the trial. All this suggests, that such applications should, for obviously good reasons, be made without unnecessary delay — as soon as practicable, without doing violence to right; and always on meritorious grounds ; or, for failure in either case, it will be denied.

This application was made when the case was first called regularly for trial. “Immediately [as the bill of exceptions states] before any announcements were made, or any witnesses called, the defendant presented amotion: for a change of venue.” The indictment, found at the January term of the criminal court, 1894, was filed in court on the 27th day of .January ; and at that term — on the 2d of March, 1894 — the defendant was arraigned in open court, his counsel being present, and pleaded not guilty. At the same time, the cause was set down for trial, on Monday, the 9th day of April, thereafter, which was a day within the next succeeding April term of said court; and on that day, after some preliminary steps, looking to the organization of juries for the trial of this and other capital cases set for that day, the case was called for trial, when said motion, as has been stated, was made. The solicitor objected to the filing, hearing and consideration of said motion, on the ground that it came too late, and no reason was set forth for the delay-in filing said application. It was allowed to be filed, and in support thereof, the affidavits of nine persons were submitted by the defendant. The bill recites, that “the court did not require the State to file any rebutting affidavits, nor were any filed, but the court overruled said motion of the defendant, and refused to grant him a change of venue,” to which ruling the defendant excepted.

The only statement in the petition as a ground for the change is, “that the feeling and prejudice existing against him in this county is so wide spread and strong, that the defendant could not get a fair and impartial trial.” No reason is assigned, why the application was not sooner made. The affidavits, like the application, are very general in their statement of facts, and the conclusion expressed in each affidavit is substantially in the same language — “that the feeling and prejudice against the defendant is widespread and very strong.” The allegation of fact, as made by each of them, is to the effect that he had conversed with and heard expressions from a large number of people from different portions of the county. What these people said is not stated, except in two of the affidavits, one by Daniel A. Greene, who stated that he “heard a number of people go so far as to say, that defendant should not have the benefit of an attorney to make his defense the other, by J. T. Shugart, who deposed, “that numbers of people have said in his presence, that it would take mighty little evidence for them to convict defendant; that they would convict him on general principles. ’ ’

It is well settled, that the mere expressions of opinions, that one accused of crime can or cannot have a fair and impartial trial, are worthless as evidence, pro or con, unless they are supported by sufficient reasons, testified to as facts.—Salm v. The State, 89 Ala. 56; Hawes v. The State, 88 Ala. 37; Seams v. The State, 84 Ala. 410. It must be admitted, that the application in its statement of the specific fact of prejudice against the defendant, such as it is averred will prevent his having a fair and impartial trial, is very general, as much so as it can well be made ; and the affidavits in support thereof are also very scant and unsatisfactory as to facts tending to support the conclusions expressed in each of them, of the existence and prevalence of the prejudice referred to. The court might well have declined to grant the application on this ground, and on the other, that defendant made no showing why he had not made earlier application before the trial. There appears, also, to have been no unusual difficulty in empanelling a jury, such as would have been encountered, if such a prejudice existed against the defendant as that set up in his application. We will not put the court in error for having denied the application under such circumstances.

2. There was no error in the ruling of the court, refusing to quash the venire, on account of the absence of the juror, Walker. The court was proceeding, in all respects, so far as appears, according to the amended, act, “to expedite the trial of capital cases in Jefferson county,” (Acts 1890-91, p. 561) ; and, as the bill of exceptions states, “While organizing the three regular juries of the week, C. C. Walker was present and sworn as to his qualifications and any excuse he might offer, and was told that he would be on jury No. 2, which was not completed ; and the court drew talesmen from the box in order to complete the panel. On the complete organization of said j ury, the said C. 0. Walker failed to respond to his name, and no showing was made or evidence given as to the cause of his absence, and the court organized the full juries for the week without saidWalker.” This party had not been sworn as a juror, but like the others, had been examined, alone, as touching his qualifications; and found to be competent to serve, he and the others Avere alloAved to go, until the court drew and the sheriff went out and summoned — as required by said act — a sufficient number to complete tiie jury. When he had done this and the talesmen so summoned appeared, and the court Avas ready to proceed to complete the jury, Walker, without the authority of the court, was missing. It could not be tolerated, that his absence, under such circumstances, should balk the trial of the cause and the proceedings of the court. The court did right, to proceed without reference to said Walker, and complete the organization of the juries.

3. Nor was there any ground for the complaint made, as to the impeachment of the defendant — Avho had testified in Ms own behalf — by the witness, McDonald. The question propounded to him was : “Do you know the general character of Eugene Byers in the neighborhood in which he lives?” This was objected to by defendant’s counsel, because, as stated, “his character is not admissible, only as far as truth and varacity are concerned.” The objection was properly overruled. General bad character, simply, may be proved, to impeach a witness, without asking the further question of the impeaching witness, if he would believe him on oath in a court of justice.—Mitchell v. The State, 94 Ala. 73; Birmingham U. R. Co. v. Hale, 90 Ala. 11. The inquiry may also be extended, but not limited, to his character for truth and veracity.—Davenport v. The State, 85 Ala. 338. The court held the witness steadily to the preliminary question — though he answered evasively a good many times, as most witnesses do, from a want of understanding — whether he knew the defendant’s general character? to which witness replied, he did, and that it was bad.

4. A witness for the State testified that while defendant, deceased and two or three others, were at a table in a restaurant, on Saturday morning, the day of the killing, defendant offered to bet “that he could make high, low, Jack and the game on his hand and another testified, that on Saturday, while defendant, deceased and others were in a saloon, defendant had a deck of cards, and taking witness to the rear of the saloon, told him, if “he would go in with him, and help him work a trick at cards, they could win some money from Walker,” the deceased ; and still another, that defendant proposed to go in with him and fix the cards so that they could win money from deceased ; all of which the court allowed against the objection and exception of defendant. This evidence was admissible in connection with the other evidence in the cause, to show the relations between the defendant and deceased ; that defendant was endeavoring to ascertain what money he had and that he was purposing to get it by devious ways.

There were a number of other rulings of the court on rejection of evidence, to which exceptions were reserved, but which are not insisted on in the brief of counsel for defendant: We have examined them, and finding the most of them so clearly without merit, we need not consider them.

The two charges requested by defendant and refused were manifestly illegal.

We find no error in the record, and the case must be affirmed. It appearing that the day fixed for the execution of the sentence of the law has passed, this court now appoints Friday the 8th day of February, 1895, as the day on which the proper executive officer of the county of Jefferson, in the manner required by statute, will execute the sentence of the law, as pronounced bv the court.

Affirmed.