McClain v. State

SOMERVILLE, J.

Upon a very careful consideration of the question, we are not reasonably satisfied that defendant could not obtain a fair and impartial jury and a fair and impartial trial in St. Clair county.

The facts shown by the defendant’s affidavit, as distinguished from mere conclusions, are (1) great popular excitement and wrath over the commission of the crime; (2) extraordinary interest in the preliminary trial, as manifested by the attendance of 1,500 or 2,000 people; (3) prejudicial assertions of defendant’s guilt in several newspapers in general circulation in the county; and (4) fixed opinions as to the guilt of the Camp-bells, who were jointly indicted with him, on the part of many of the veniremen just preceding defendant’s trial. It may be fairly asserted that these conditions accompany or follow the commission of all very brutal crimes in whatever community they may occur. It is certain, also, that newspaper reports of such crimes, accompanied by sensational comments and denunciations of the accused, are likely to inflame the sentiments of certain classes of the people and to engender in their minds a passive conviction, more or less permanent, óf the guilt of the accused.

We are not prepared to concede, however, that the sensational language of a newspaper reporter or special correspondent used in “writing up” such cases as this may be safely taken as a reflection of general public sentiment; nor that it may be lightly assumed that such statements as those here shown are capable of permanently molding and fixing the opinions of the more intelligent classes of the people to the extinction of their sense of fair play, and the suppression of their sober second thought.

Other than the conclusions of the affiant himself, and the inferences drawn by him as to the effect of the newspaper reports, there is nothing to show such a state of inflammation and prejudice against him in the public mind as might be presumed to pervade the jury box and dominate the verdict to be rendered. And, other than the expression of a vague apprehension of it in one or two of the newspaper articles, there is nothing that tends in the slightest degree to suggest the thought at any time of mob violence towards the accused, or of any animosity against them except, perhaps, as they might be shown to be guilty of the crime charged against them.

The factor of racial prejudice, and the general atmosphere and special conditions shown in the case of Seams v. State, 84 Ala. 410, 4 South. 521, are not exhibited here. Something more is needed besides the statements and conclusions of defendant, and nothing whatever is offered in support of them. What was said in Hawes v. State, 88 Ala. 37, 54, 7 South. 302, 307, is in point here: “The defendant swears that prejudice against him not only continued, but grew more bitter against him. Pretermitting the infirmity of interest which naturally infects his testimony, it is manifest that he was not in a position to know much about the state of the public mind, and for this reason, of itself, what he says is entitled to very little weight, except in so far as he is corroborated by other testimony.”

Six months had elapsed since the murders, and two months had passed since the arrest of the accused, and it does not appear that any difficulty was experienced in selecting from the venire of 43 men 12 jurors without fixed opinions as to defendant’s guilt, nor that the solemnity of their duty to the state and to- accused was obscured by any atmosphere of prejudice from within or from without. Nor does the verdict itself, with respect to the punishment inflicted, indicate a responsiveness to an inflamed public sentiment, or to an unreasoning demand for conviction without adequate proof.

It is worthy of notice, also, that, although a severance was ordered for the three accused men on March 27th, and the statute requires the application to be made “as early as practicable before the trial, it was not made by defendant until May 2d, just two days before his trial, and just after a verdict of conviction in the case of Will Campbell.

Under the principles and reasoning stated in the recent case of Godau v. State, 179 Ala. 27, 60 South. 908, not unlike this in its material aspects, we are constrained to hold that the trial court did not err in overruling the application. We have considered its merits de novo, as required by the amendatory act. of August 26, 1909 (Acts Sp. Sess. 1909, p. 212), and we are not reasonably satisfied that it should have been granted.

The trial court properly allowed state’s witnesses to testify to a conversation with and statement by defendant, made a short while before the murder, with reference to dispute, between him and Jacob Lutes, as to payment for a place which defendant had bought from Lutes, that Lutes would never live to take the place back from defendant. The statement was of course easily susceptible of an innocent meaning, but it was also susceptible of a sinister meaning, and its interpretation and weight were manifestly matters for the jury to determine.

■ To rebut the theory of an evil meaning, defendant offered to show that Lutes was an old man, and that he had formerly several times taken the place back from other purchasers. There was no error in excluding this testimony. That Lutes was an old man 72 years of age was in evidence and was not disputed, and the fact of his former recaptions of the land was not competent evidence on any of the issues of this case.

The witness Knight was properly allowed to testify that on Friday after the murder, which occurred on Monday or Tuesday preceding, he observed red splotches on defendant’s trousers leg which looked like blood. —Mayberry v. State, 107 Ala. 64, 18 South. 219; James v. State, 104 Ala. 20, 16 South. 94. The circumstances of the murder were such as to render it probable that blood would have splattered on the murderer, and the fact could not have been presented to the jury other than by the opinion or conclusion of the witness.

State’s witnesses were properly allowed to state that, during the sitting of the coroner’s jury, defendant asked them whether his name or the Campbell brothers’ had been mentioned at that inquest; none of them having at that time been accused of the crime. The inquiry displayed án anxiety which had a legitimate tendency to show a consciousness of guilt in defendant’s mind, and its probative value was for the jury.

So Mrs. Knight, who lived in a house on defendant’s place a short distance from defendant’s home, was properly allowed to state that defendant inquired of her, shortly after the murder, “whether she could swear where he was every night up to the discovery of the murder.”

According to the state’s witness, McLemore, defendant stated to him, several weeks before the murder was committed, that he had planned to kill and rob Lutes and his wife, and implicated the Campbells in the plot. Other evidence, introduced later, also tended to implicate the Campbells. It was therefore competent for the state to show that Will Campbell was connected with the perpetration of the crime, and, to that end, to show by the testimony of Crump and Hollingsworth that Campbell passed by Crump’s house, riding a horse along the public road, in the direction of the Lutes home, on Tuesday night before the murder was ■ discovered; the evidence indicating that the murder occurred on Monday or Tuesday night.

We have examined and considered all the other exceptions taken by defendant to rulings on the evidence, and find them so palpably without merit that their separate statement and discussion would not be justified.

A reasonable doubt not arising from the evidence, or not existing in the face of the whole evidence, is not a proper predicate for acquittal. Charges F, G, H, and I, refused to defendant, violate this principle.

A defendant’s guilt need not be proved “clearly, fully, and conclusively,” and, thus framed, charges J and O exact too high a degree of proof.

Charge K is both argumentative and misleading, and charge L is abstract; there being no evidence tending to show that any of the state’s witnesses received any part of the reward offered for the arrest and conviction of defendant.

The presumption of a defendant’s innocence attends him during the trial only until it is overthrown by evidence of his guilt beyond a reasonable doubt. — Waters v. State, 117 Ala. 108, 22 South. 490. Charge M violates this principle.

Charge N is fully covered by given charges 25, 40, 41, and 43.

Charge P is misleading in that it requires an acquittal unless defendant participated in the commission of the crime, which is subject to the interpretation that physical participation was necessary. It was, however, given in the same language in charge 33.

A reasonable doubt requiring an acquittal cannot be predicated alone on the evidence relating to proof of an alibi, as asserted in charge Q.

Defendant’s guilt did not depend solely on proof of the theory of a conspiracy, nor on its proof beyond a reasonable doubt. Charge R and X violate this principle, single out a part of the evidence, and invade the province of the jury.

The giving of false testimony does not authorize the jury to disregard all of a witness’ testimony (Prater v. State, 107 Ala. 26, 18 South. 238), as erroneously asserted by charge S. Defendant had the benefit of this very charge, however, in given charge 49. .

Charge T has been repeatedly condemned, and charge U is found in other given charges over and over again.

Charge Y asserts that any contradictory statement made by any witness may be sufficient to generate a reasonable doubt of defendant’s guilt. The charge is purely argumentative, and violates common sense.

A reasonable doubt in the mind of one juror would not render a verdict false unless such doubt persisted in the face of a joint consideration of the whole evidence by all of the jury. Joint consideration is an imperative duty, and may often "silence individual doubt as well as confirm them. Charge Z is in this aspect highly misleading. — Holmes v. State, 136 Ala. 80, 34 South. 180. It was, however, given for defendant in charges 31, 35, and 57. '

Charge AA is merely argumentative, but its requirement of proof of guilt to a moral certainty was repeatedly stated in other charges.

Charge BB is admonitory and argumentative. It embodies correct propositions of law, but' defendant had no right to have the jury admonished that there is no appeal from their verdict on the facts.

A reasonable doubt “as to the truth” is not a proper predicate for acquittal, as asserted in charge CC.

Charge DD is admonitory and argumentative. Defendant had no right to have the jury instructed that it would be improper for them to consider whether he might or might not be pardoned at some future time, if they found him guilty.

We find no error in the record, and the judgment of conviction will be affirmed.

Affirmed.

All the Justices concur, except 'Dowdell, C. J., not sitting.