Parham v. State
Decision Date | 29 June 1971 |
Docket Number | 6 Div. 169 |
Citation | 250 So.2d 613,47 Ala.App. 76 |
Parties | Cleveland PARHAM, III v. STATE. |
Court | Alabama Court of Criminal Appeals |
William T. Kominos, Birmingham, for appellant.
No brief from State.
Robbery: sentence, ten years. The State failed to appear at argument and submitted without filing a brief.
For prior proceedings see Parham v. State, 285 Ala. 334, 231 So.2d 899 wherein it was said:
'In substance, his petition alleged that he had been brought to trial upon an indictment for robbery and that a mistrial had been erroneously declared by the trial judge, thus placing him in jeopardy, and thereby acquitting him.
* * *.'
The appellant pleaded former jeopardy. The State stipulated that the record in Parham, supra, would be the evidence to support the plea.
It is undisputed that in the absence of both the defendant and his attorney, the bailiff told the jury they could disperse sine die at shortly before 11:00 P.M. The judge was not present.
The next day the judge purported to formalize this end of the case by cloaking it under the statutory guise of a mistrial. This was error.
At the second trial the plea of former jeopardy was denied and in this the court below erred: First, the defendant had no chance to have the initial trial jury polled on their prospects of verdict. Curry v. State, 203 Ala. 239, 82 So. 489; second, it is improper for the judge to delegate to the bailiff the responsibility of determining their discharge.
Double jeopardy is facile of comprehension, difficult of illustration. In every trial at common law there is a point of no return. As with a point on a sea, the demarcation is not easy either in practice or in teaching.
A trial is an adversary affair drawing much of its etiquette from mediaeval trials by combat, iv Bl.Com. 346--348. Hence, lawyers sometimes today are often looked on as antagonists rather than protagonists.
From this background arose the formality of accusation, arraignment with traverse or avoidance, selection and swearing of the petty jury, then the charging of the jury with the deliverance of the prisoner at the bar. Murray v. State, 210 Ala. 603, 98 So. 871; Bell v. State, 44 Ala. (393) 394; Powell v. State, 37 Ala.App. 192, 65 So.2d 718; Epps v. State, 28 Ala.App. 105, 179 So. 395; Lyles v. State, 41 Ala.App. 1, 122 So.2d 724; Artrip v. State, 41 Ala.App. 492, 136 So.2d 574.
Our statutory oath or affirmation for petty jurors 1 calls for them to (1) 'well and truly try all issues * * * which may be submitted * * * (2) and true verdicts render according to the evidence * * *.' Code 1940, T. 30, § 58.
At an early stage in this country it was recognized that the doctrine of a jury being compelled to deliberate until verdict could be carried to absurd extremes. Under this view the expression 'manifest necessity' was used to adumbrate permissible grounds to authorize the court to discharge the jury sine veredicto. This principle was most articulately voiced by Justice Story. United States v. Perez, 9 Wheat. 579, 6 L.Ed. 165; Nugent v. State, 4 Stew. & P. 72.
In Alabama it has become metamorphosed from our decisional law into our Constitution and statutes. Constitution, 1901, § 9 provides:
'That no person shall, for the same offense, be twice put in jeopardy of life or limb; But courts may, for reasons fixed by law, discharge juries from the consideration of any case and no person shall gain an advantage by reason of such discharge of the jury.' (italics added).
The italicized language was new with the 1901 Constitution.
Code 1940, T. 30, § 100, which was first introduced into our statutory scheme by the 1907 Code commissioner reads as follows:
Much of what was written in Cook v. State, 60 Ala. 39 could be analogized to what happened in the instant case with the discharge of the jury. Moreover, here the bailiff is not authorized by § 100, supra, to discharge the jury. Only the 'courts or presiding judges' are so empowered.
An annotative note in the 1940 Code (vol. 6, p. 65) under § 100, supra, mistakenly cites Curry v. State, 203 Ala. 239, 82 So. 489 as holding that the defendant need not be in court when a mistrial is entered and the jury discharged.
In Walker v. State, 117 Ala. 42, 23 So. 149 the term of court (under the old law) expired at midnight and the trial, like Cinderella's coach, lost its magic.
Examples of proper manifest necessity have arisen from: illness of prisoners, jurors, judges (in State v. Tatman, 59 Iowa 471, 13 N.W. 632 of the judge's wife; in Hawes v. State, 88 Ala. 37, 7 So. 302 of a juror's wife); death of a juror, the judge or a near relative of either; tardily disclosed disqualification of a juror not consented to; misconduct of a juror or bailiff; mental incapacity or intoxication of a juror. See Nugent, supra; Mixon v. State, 55 Ala. 129; People ex rel. Brinkman v. Barr, 248 N.Y. 126, 161 N.E. 444. However, misconduct of a defendant operates in the nature of an estoppel as a species of attempted invited error. In re State ex rel. Battle, 7 Ala. 529; Simmons v. United States, 142 U.S. 148, 12 S.Ct. 171, 35 L.Ed. 968; Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353.
Protracted failure of a jury to agree was an early example of the necessity rule. United States v. Perez, supra. However, as to whether a jury may be discharged for failure to agree has been a more difficult and variously answered question. See Ned v. State, 7 Port. 187 ( ); McCauley v. State, 26 Ala. 135 ( ); Ex parte Vincent, 43 Ala. 402 ( ); per contra, In re State ex rel. Battle, 7 Ala. 259.
Now, however, the Constitution of 1901, § 9, and Code 1940, T. 30, § 100, give the trial judge discretion to discharge a jury upon failure to agree, Alford v. State, 243 Ala. 404, 10 So.2d 373; Andrews v. State, 174 Ala. 11, 56 So. 998, McClellan and Mayfield, JJ., dissenting.
It is clear that this Code section recognizes the fact that hung juries come about and our law today does not contemplate that the circuit judge shall cart them about on his itinerary from county seat to county seat until they agree. Nor are they nowadays to be kept 'without meat, drink, or fire (candle-light excepted),' Winsor v. Queen, (1866) L.R. 1 Q.B. 289, also p. 389. Under T. 30, § 97, it is provided that the county must furnish suitable lodging and meals to jurymen.
In People v. Parker, 145 Mich. 488, 108 N.W. 999 we find:
* * *'
See Paulson v. Superior Ct. of El Dorado County, 58 Cal.2d 1, 22 Cal.Rptr. 649, 372 P.2d 641 (h.n. 8); People v. Carter, 68 Cal.2d 810, 69 Cal.Rptr. 297, 442 P.2d 353 (coerced verdict).
On the former jeopardy hearing all the allegations quoted above from Parham v. State, 285 Ala. 334, 231 So.2d 899 were established without dispute. The bailiff testified that he alone was with the jury in the courtroom at a little before 11:00 P.M. Acting on the prior instructions from the judge presiding at the first trial he told the jury to disperse.
Colloquy with that judge evoked the following at the conclusion of the testimony in the habeas corpus hearing:
Bailiff (from the French Baillier or Bailler, to hand over) in law signified a keeper or protector. A trial court's bailiff is a sworn servant who has...
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Woods v. State
...So.2d 305, cert. denied, 292 Ala. 718, 299 So.2d 312 (1974). Examples of proper manifest necessity may be found in Parham v. State, 47 Ala.App. 76, 79, 250 So.2d 613 (1971) and Hawes v. State, 88 Ala. 37, 62, 7 So. 302 (1889). In legal effect a mistrial is the equivalent of no trial at all ......
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... ... State v. Reynolds, 887 So.2d 848, 854 (Ala.2004). A trial court's authority to consolidate actions is clearly within its discretion ... Further, the courts of this State have recognized that judicial functions, such as declaring a mistrial, Parham v. State, 47 Ala.App. 76, 250 So.2d 613, 617 (Ala.Crim.App.1971), or striking jurors, Russaw v. State, 572 So.2d 1288 (Ala.Crim.App.1990), may not ... ...
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Ex parte Anderson, 1 Div. 722
...and discretion to discharge a jury upon a failure to agree. Parham v. State, 285 Ala. 334, 231 So.2d 899 (1970); Parham v. State, 47 Ala.App. 76, 250 So.2d 613 (1971); Orr v. State, 40 Ala.App. 45, 111 So.2d 627 (1958), affirmed, 269 Ala. 176, 111 So.2d 639 (1959). A jury's inability to agr......
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Clements v. State, 7 Div. 739
... ... Section 9 of the Alabama Constitution of 1901 and Alabama Code Section 12-16-233 (1975) give the trial judge the authority and discretion to discharge a jury upon a failure to agree. Parham v. State, 285 Ala. 334, 231 So.2d 899 (1970); Parham v. State, 47 Ala.App. 76, 250 So.2d 613 (1971); Orr v. State, 40 Ala.App. 45, 111 So.2d 627 (1958), affirmed, 269 Ala. 176, 111 So.2d 639 (1959). A jury's inability to agree either on a verdict or punishment is a proper ... reason for the ... ...