Terry v. State , 120 Ala. 286 ( 1898 )

TYSON, J.

The facts averred by defendant in his application for a change of venue, were, that on the day after the alleged murder with which he was charged, he was given a preliminary hearing and bound over to await the action of the grand jury ; that about night of that day a mob was formed and began to make demonstrations indicating a disposition to take him from the custody of the constable, who had him in charge, and kill him, when he made a dash and escaped to the woods pursued by some of the persons composing the mob. Afterwards searching parties were organized to apprehend him, without avail. Just prior to the next term of the circuit court he sun’endered and was imprisoned in the jail of another county. That after his trial was fin-‘ ished and while the jury were considering their verdict, a large crowd of enraged persons gathered about the court house and threatened to kill him, should the jury acquit Mm. That he was convicted and sentenced to-death, from which judgment he appealed to the Supreme Court, but on the day fixed by the court for his execution, a large crowd of people gathered in Elba, and when informed of his appeal and the sheriff had the day before taken him to another county, another mob formed and threatened to go after him, take him from the officers of the law and kill him. That since the reversal of his case by the Supreme Court there has been ‘ ‘expressions to the effect that he has put the county to expense enough and ought to be killed and the county rid of him.” That after it became known that he would apply for a change of venue ‘ ‘he has learned of various threats that if the change of venue was granted a mob would be formed to take his life and not allow him again to go from the county. And he alleges that the public sentiment in the county is such that he cannot get a fair and impartial trial in this county from the facts aforesaid.”

Before entering upon a consideration of the affidavits offered by defendant in support of this application and those by the State in opposition, it will be well to note that his preliminary examination was had the 14th day of July, 1897, that his trial and conviction was on September 10, 1897, that the judgment of reversal by this court was on the 23d day of June, 1898, and this application was filed the 6th day of September, 1898.

The defendant filed the affidavits of seven persons which may be grouped into four classes — two relate exclusively to the facts as alleged in the application as to the demonstrations made by the crowd on the day of the preliminary examination ; two relate to what took place during the day fixed for his execution ; one recites that one DuBose, a few days after the reversal, told' affiant that the county had been put to enough expense by the defendant, and that he was in favor of the citizens of the county taking him and killing him, and that he knew others of the same opinion ; and the two others recite that certain persons named, had told each of the affiants, that they had heard, that day, several persons, whose names are not stated, talk of hanging defendant if a change of venue was granted.

Under the principles declared in the case of Hawes v. The State, 88 Ala. 37, only the two last mentioned affida vits could have had any influence in determining the question presented by the application.

It. is worthy of note that the persons making each of these affidavits do not state their knowledge of the condition of the public mind in regard to the defendant, but simply what some other person had told them that he had heard. Whether the sentiments inimicable to the rights of the defendant to have a fair trial, were expressed by kins-people or partisan friends of the deceased or her family is not shown. To what extent this sentiment prevailed, beyond a few persons, there is an entire absence of proof. But conceding that the affidavits show there existed at one time some bitterness’of feeling toward defendant throughout the county, the affidavits introduced by the State clearly show that it did not exist at the time of this trial. These affidavits were made by the sheriff, probate judge, county treasurer and a justice of the peace, in which it is stated that they have talked with a great many people of the county and from all portions of the county, and heard many expressions made by many people ; and that in their opinion the defendant could obtain a fair trial. There was no error committed by the court in refusing the application. Hawes v. State, 88 Ala. 37, supra.

There was no error in the refusal of the court to issue an attachment for witness Dr. Grubbs at the instance of the defendant. He was shown to have been sick and unable to attend court. Neither- was there error in the action of the court in overruling the defendant’s motion for a continuance on account of his absence, since the defendant had the benefit of his testimony in a showing introduced in evidence by him.

It was competent for the witness Mrs. Crumpler to testify that “the flesh moved and it appeared her skull was broken or crushed.” — Evans v. State, ante p. 269, and authorities there cited.

The other exceptions reserved to the rulings of the court upon the admission of evidence are so wanting in merit that we will not discuss them. — Terry v. State, 118 Ala. 79.

The three charges refused to the defendant each invaded the province of the jury and were properly refused.

The written charge given at the request of the solicitor was proper.—Duvall v. State, 63 Ala. 12.

There is no error in the record and the judgment is affirmed. The day fixed by the court below for the execution of the sentence of death pronounced against the defendant having passed, it becomes our duty to specify a day for his execution. It is accordingly ordered and adjudged that on Friday, 17th day of March, 1899, the sheriff of Coffee county execute the sentence of the law, by hanging the defendant, the said Major Terry, by the neck until he is dead, in obedience to the judgment and sentence of the circuit court of Coffee county, as herein affirmed-.