Thompson v. State , 122 Ala. 12 ( 1898 )

DOWDELL, J.

— The defendant was tried and convicted on a charge of rape. Before entering on the trial he filed a motion for a change of venue. This motion was demurred to hy the State, and after being several times amended and as often demurred to, the demurrer was sustained by the court. The facts as stated in the motion were insufficient to authorize a change of venue, and under the.authority of Jackson et al. v. State, 104 Ala. 1, the court committed no error in sustaining the demurrer. In the case of Jackson et al., supra, the application for a change of venue was refused by the court after a hearing, upon a statement of facts supported by affidavits much stronger than those stated in defendant’s motion in the case at bar.

The act of February 18th, 1887, entitled “An act to more effectually secure competent and well qualified jurors in the several counties of this State,” etc., was a general law, and those provisions in the act not brought forward and continued in the present Code of 1896, were by the act of codification repealed. Some of its provisions were, however, recodified in the present Code and form a part of chapter 166. — Or. Code, 1896, p. 347. The provisions of this chapter, 166, relating to the selection, drawing and summoning of jurors are declared to be merely directory. — § 4997.

The several motions made by the defendant to quash the special venire drawn for the trial of the case were properly overruled by the court. Section 4997 of the Grim. Code, as construed in Bales’ Case, 63 Ala. 30, was a complete answer to the motion to quash. There is nothing in the record to show that the defendant was prejudiced by the manner of drawing the jury. Besides, since the decision in Bales’ Case, the above section has been amended hy the addition of the last clause in said section, which provides that “No objection can be taken to any venire facias for a petit jury, except for fraud in drawing or summoning the jurors.” It is not pretended, in this case that there was any fraud either in the drawing or summoning of the jurors.

The motion to quash the indictment is answered hy section 5269 of the Code. See also authorities cited under that section. There was no error in overruling this motion.

, The statement made by the witness King on the morning after the alleged rape to one Mehan and Mehan’s reply, while we think was without injury to the defendant, yet having been made in the absence of the defendant, was improperly admitted against defendant’s objection. It is of that character of evidence that should not be received in the trial of causes. If this were the only error committed on the trial in the admission of evidence, we Avould be inclined under the provisions of section 4333 of the Criminal Code not to reverse; feeling satisfied that the evidence Avas innocuous to the defendant, and error one without injury.

The identification of the defendant as the guilty party was an important question in the case. The testimony of the witness Mehan as to what transpired at the house of Mrs. King the morning after the alleged rape should not have been reeeiAred over defendant’s objection. This testimony going to the identification of the defendant, being a conversation had between the A\fitness and Mrs. King in the absence of the defendant, Aims hearsay and clearly illegal. The injury to the defendant in the admission of this eAddence is too manifest and apparent to admit of question. The direct tendency of it Avas to identify the defendant as the guilty party, and as stated above this was an important inquiry in the case, and a disputed question.

The several written charges requested by the defendant and refused by the court numbered two, three and five, hypothesized facts not contained in the ewidence and were therefore abstract, and for that reason, if no other, bad and Avere properly refused. There Avas no evidence that Callie King Avas laboring under any hallucination.

The 4tli mitten charge requested was argumentative and properly refused. Charge No. 1 being the affirmative charge, needs no further comment than the statement, that there was a conflict in the evidence, and the affirmative charge is never to be given under these circumstances.

The charge given at the request of the State, while it might he characterized as argumentative, contained a correct statement of the law. The giving of a charge, though argumentative, which correctly states the law, is not reversible.

For the error pointed out in the admission of evidence, the judgment must be reversed and the cause remanded.