Oliver v. State

Decision Date12 March 1936
Docket Number5 Div. 215
Citation166 So. 615,232 Ala. 5
PartiesOLIVER v. STATE.
CourtAlabama Supreme Court

Appeal from Circuit Court, Elmore County; Arthur Glover, Judge.

Arthur Oliver was convicted of murder in the first degree, and he appeals.

Reversed and remanded.

W Howell Morrow, of Lanett, and Jacob A. Walker, of Opelika for appellant.

A.A Carmichael, Atty. Gen., and Jas. L. Screws, Asst. Atty. Gen for the State.

THOMAS Justice.

The defendant was indicted and convicted of murder in the first degree.

From the verdict and judgment of murder in the first degree imposing the death penalty, the appeal is taken.

It appears from the record proper that defendant was arraigned on January 18, 1935, and filed his motion to quash the indictment on the ground that it was returned by the grand jury which was impaneled on September 3, 1934. The motion alleged that the regular grand jury was discharged by calling a special session of court for that county on December 13, 1934, at which the true bill was returned.

The record shows that the grand jury for the county for its Fall term, 1934, was drawn and impaneled on September 3, 1934; that on December 12, 1934, the circuit judge ordered a special session of that court to convene on December 14, 1934, and commanded the sheriff to issue summons for the grand jurors; that the sheriff of said county forthwith summoned the members of the regular grand jury for the term to appear at the time named. The regular grand jury of that court convened pursuant to summons at the special session called by its presiding judge, returned the indictment against this appellant, and on his arraignment defendant moved to quash the indictment, which motion was duly overruled. The procedure to indictment and trial was in accordance with the statute, section 8665, Code of 1923. Riley v. State, 209 Ala. 505, 96 So. 599; Kilpatrick v. State, 213 Ala. 358, 104 So. 656; Hudson v. State, 217 Ala. 479, 480, 116 So. 800; Petty v. State, 224 Ala. 451, 140 So. 585. The record does not show that a special grand jury was called, but that the same grand jury which convened on September 3, 1934, for the Fall term of that court was not shown to have been theretofore discharged. Such inquisitorial body remained in session until dissolved by operation of law--by an order of the court, or by expiration of the term for which it was drawn and impaneled. Petty v. State; Riley v. State, supra; Whittle v. State, 205 Ala. 639, 89 So. 43; Caldwell v. State, 203 Ala. 412, 84 So. 272.

Under the provisions of the act of 1933 (Gen.Acts 1933, pp. 144, 145), there was no error in refusing defendant's motion to stay the trial in order to appoint a special commission or the superintendent of the state hospitals for the insane to examine him and report his mental condition when the crime was committed and at the time of the trial. This statute merely states or confirms the inherent powers of a court in the premises, as to a defendant to be placed upon trial for crime. Ala. Great Southern R.R. Co. v. Hill, 90 Ala. 71, 8 So. 90, 9 L.R.A. 442, 24 Am.St.Rep. 764; Id., 93 Ala. 514, 9 So. 722, 30 Am.St.Rep. 65. The former statute on the same subject, section 7178, Code of 1907, section 4575, Code of 1923, was held, not mandatory, merely discretionary, for the purpose of advising the court. Rohn v. State, 186 Ala. 5, 65 So. 42; Granberry v. State, 184 Ala. 5, 63 So. 975. The former statute bears marked similarity to the act of 1933 (Gen.Acts 1933, p. 144), and was held not mandatory. Gast v. State (Ala.Sup.) 167 So. 554.

In construing a statute, if its terms will permit, it should be construed to sustain its constitutionality. If this statute be held to be mandatory, a constitutional question will be presented, in that the right to pass upon the sanity of a defendant to be tried for crime in the circuit court, is a prerogative right that may not be denied that court. There was no error in the denial of the defendant's motion by the trial court.

Defendant's counsel insist that defendant was intoxicated and could not entertain the necessary intent and elements of murder in the first degree. The evidence as to this was in conflict; a jury question was presented under the decisions. The verdict and judgment was warranted by the evidence, and under the rule that obtains, the jury were authorized to find that the defendant was capable of entertaining the specific intent which constitutes an essential element and which caused him to commit the crime of murder for which he was convicted. Gilmer v. State, 181 Ala. 23, 61 So. 377; James v. State, 193 Ala. 55, 69 So. 569, Ann.Cas.1918B, 119; Sharp v. State, 193 Ala. 22, 69 So. 122; 30 C.J. 332; Cagle v. State, 211 Ala. 346, 100 So. 318; Laws v. State, 144 Ala. 118, 42 So. 40; Bell v. State, 140 Ala. 57, 37 So. 281. The general affirmative charge requested was properly refused. Cobb v. Malone & Collins, 92 Ala. 630, 633, 9 So. 738.

There is great conflict in the evidence as to the sanity and insanity of the defendant before and at the time of the commission of the crime. The verdict and judgment thereon is well-supported by the evidence. The several witnesses, expert and lay, so testifying on that issue were duly qualified, and properly permitted to express opinions within the rule that obtains. There was no error in allowing Dr. Sewell, who qualified as an expert, to testify for the state (Williams v. State, 224 Ala. 6, 138 So. 291; Kilpatrick v. State, 213 Ala. 358, 104 So. 656; Bass v. State, 219 Ala. 282, 122 So. 45); as one who is shown to be sufficiently familiar with a person and states the sufficient facts on which he bases his opinion, may testify of the sanity vel non of a defendant. The qualification is addressed to the sound discretion of the trial court. Jones v. State, 181 Ala. 63, 61 So. 434.

The argument for the state, that in selecting the jury the defendant had two strikes to the state's one, had no proper place as an appeal to the jury (Watson v. State, 155 Ala. 9, 46 So. 236). The trial court sustained the objection thereto.

The argument of the solicitor that there was a Governor with pardoning power was likewise improper and excluded. These remarks of the state's counsel were of the class of improper arguments which may be remedied or their evil effects eradicated by instructions of the court. Anderson v. State, 209 Ala. 36, 95 So. 171; Bachelor v. State, 216 Ala. 356, 113 So. 67; Peterson v. State (Ala.Sup.) 166 So. 20.

The motion in arrest of judgment contained the ground that the verdict was not sufficient on which to rest the judgment entered thereupon. The verdict, referable to the indictment, was sufficient under the law. The name of the party alleged in the indictment to have been killed was not required to be stated in the verdict and finding of the jury. The finding of the jury was murder in the first degree, and the punishment fixed at death. This was sufficient under the statute Code 1923, 4457 and decisions. Ruff v. State, 229 Ala. 649, 159 So. 94; Ledlow v. State, 221 Ala. 511, 129 So. 282; Gross v. State (Ala.Sup.) 165 So. 840.

It is established that in their deliberation the jury should be separated from and uninfluenced by the outside world. Any misconduct that might influence the jury, affect the verdict rendered or the punishment fixed, is a cause for a new trial. The test of vitiating influence upon a jury authorizing a new trial is not whether it did influence the jury to act without the evidence, but whether it might have unlawfully influenced the jury in the verdict returned, as to its nature character, or degree, or the amount and extent of the punishment fixed by the jury within ...

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  • Burns v. State
    • United States
    • Alabama Supreme Court
    • 15 Junio 1944
    ... ... hospital for insane to examine accused and report his mental ... condition, is not error. § 425, Title 15, Code of 1940 ... (Gen.Acts 1933, Ex.Sess., p. 144) is not mandatory but leaves ... such matters to the discretion of the court. Oliver v ... State, 232 Ala. 5, 166 So. 615; Gast v. State, ... 232 Ala. 307, 167 So. 554 ... The ... following conversation took place between the court and ... counsel for the defendant in the presence of the jury: ... "The ... Court: Mr. Alford, call another witness, if ... ...
  • Pierce v. State
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    • Alabama Court of Criminal Appeals
    • 2 Marzo 1999
    ...separation or because of the sick juror's contact with the sheriff and his deputy. Harris specifically distinguished Oliver v. State, 232 Ala. 5, 10, 166 So. 615, 616 (1936), in which: "the officer in charge of the jury was the one who chiefly worked up the evidence for the state, and was w......
  • Hubbard v. State
    • United States
    • Alabama Supreme Court
    • 13 Junio 1968
    ...whether it might have unlawfully influenced the jury in the verdict returned. Eaton v. State, 278 Ala. 224, 177 So.2d 444; Oliver v. State, 232 Ala. 5, 166 So. 615. Here, fatal errors pierced the cloak of protection violating basic and fundamental rights provided this defendant by the Const......
  • Dannelly v. State
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    • 17 Agosto 1971
    ...is sustained or the jury properly instructed as to it, the error may be cured. Pilley v. State, 247 Ala. 523, 25 So.2d 57; Oliver v. State, 232 Ala. 5, 166 So. 615; Peterson v. State, 231 Ala. 625, 166 So. 20; Boyle v. State, 229 Ala. 212, 154 So. 575; Bachelor v. State, 216 Ala. 356, 113 S......
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