Aaron v. State, 3 Div. 955

Decision Date28 September 1961
Docket Number3 Div. 955
Citation273 Ala. 337,139 So.2d 309
PartiesDrewey AARON v. STATE of Alabama.
CourtAlabama Supreme Court

Solomon S. Seay, Jr., Montgomery, for appellant.

MacDonald Gallion, Atty. Gen., Geo. D. Mentz, Asst. Atty. Gen., and Wm. F. Thetford, Circuit Sol., Montgomery, for the State.

MERRILL, Justice.

Appellant, a negro, was tried and convicted of raping a white woman and the death penalty was adjudged. An appeal was taken and this court reversed, 271 Ala. 70, 112 So.2d 360. The cause was again tried and the same judgment again resulted. Counsel of appellant's own choice represented him at original arraignment, and continued to represent him at both trials and on both appeals.

On the first appeal, we treated all the pertinent questions whether or not raised in brief. The second trial followed the first opinion except in the instances in which there was some disagreement with the way the matter was originally handled. Since the first opinion disposes of most of the questions which could be raised on this appeal, we treat mainly those questions argued by appellant in brief.

The jurors, regular and special, were sworn, and they were called to the rail in groups of 5, 7, 10, 12, 15 and 17. Each group was questioned as to his qualifications and the trial court then asked them thirty-three questions which had been furnished him by appellant.

One point raised in brief was that the court erred in qualifying the jury in groups. In Burns v. State, 226 Ala. 117, 145 So. 436, this court approved qualifying and impaneling the jury in groups of twelve, and in Untreiner v. State, 146 Ala. 26, 41 So. 285, in groups of six. The trial court committed no error in the instant case by qualifying the jury in groups.

Appellant sought to 'personally interrogate each prospective juror.' The court refused to permit this, but stated that the court would ask any questions for appellant. Counsel for appellant stated then, and here on oral argument, that it has long been the practice in the Circuit Court of Montgomery County for the court to ask all of the qualifying questions. However, when any juror would answer any question in such a way as to indicate any bias or interest, counsel for appellant was permitted to personally interrogate that particular juror as to the details. In Burns v. State, 226 Ala. 117, 145 So. 436, 437, it was said:

'The court had qualified the jury and refused to allow counsel to cross-examine or interrogate each juror personally. The statute placed the right 'to examine said jurors as to any matter that might tend to affect their verdict * * * under the direction of the court,' a matter largely within the discretion of the court. In this there was no error. * * *'

Title 30, § 52, Code 1940, provides:

'In civil and criminal cases, either party shall have the right to examine jurors as to their qualifications, interest, or bias that would affect the trial of the case, and shall have the right, under the direction of the court, to examine said jurors as to any matter that might tend to affect their verdict.'

It is the rule of our cases that the limit of voir dire examination is left much to the discretion of the trial court, and we do not think the circumstances here show an abuse of that discretion. Sims v. Struthers, 267 Ala. 80, 100 So.2d 23; Redus v. State, 243 Ala. 320, 9 So.2d 914; Dyer v. State, 241 Ala. 679, 4 So.2d 311; Gholston v. State, 221 Ala. 556, 130 So. 69; Rose v. Magro, 220 Ala. 120, 124 So. 296.

Appellant argues that the court destroyed the effect of two of the questions by restating or explaining them. The first such instance follows:

'Do you believe that the arrest and indictment of the defendant are some indication of his guilt? The Court would instruct you that an indictment against the defendant is no evidence of his guilt. Would you take the instructions of the Court, or would you believe that anyway? I say, if the Court instructed you, which I always do, that an indictment against an individual is in no wise evidence of his guilt, would you in spite of that fact just because he was indicted believe it was evidence of his guilt? (All jurors answered in the negative.)

'Lawyer Seay: If the Court please, we wish to object to the Court's rephrasing that specific question.

'The Court: Well, the only reason I do it is because I instruct all of them as to any indictment, an indictment is in no wise evidence of his guilt.

'Lawyer Seay: If Your Honor please, the question was designed to probe into the present state of mind of the defendant.

'The Court: Oh, I will ask them now if they believe without the Court's instructions is evidence of his guilt. (All jurors answered in the negative.)'

The first sentence was the question posed by appellant. There is a great difference between an indication of guilt and evidence of guilt. The average juror knows that no person can be tried for a felony until there has been an indictment by a grand jury. There must have been some indication of guilt to the grand jury or the defendant would not have been indicted. The question as phrased was misleading and the court could have properly disregarded it, but it was asked with an explanation by the court that removed all the misleading tendencies. In this, there was no error.

The second instance follows:

'Do you believe that it would violate community feelings to vote to acquit the defendant?

'A Juror: If there was no evidence?

'The Court: If the evidence didn't justify it. He doesn't add that. The Court might ask you--what he really means--if you were to vote to acquit the defendant and the evidence in the case justified acquitting him, would it violate community feeling?

'Lawyer Seay: If it please the Court, we would like to object to the Court re-phrasing the question. What the defendant wants to know is whether or not they feel that a verdict of not guilty by them would violate community feeling.

'The Court: Well, I think you have to ask them about the evidence because if they just turn him loose irrespective of the evidence or anything, or if they would convict him without any evidence, then if you believe it would violate community feelings to acquit the defendant without more, I don't think is a fair question.

'Lawyer Seay: If the Court please, we respectfully object.

'The Court: All right. I will ask them if the evidence doesn't justify it if you think it would affect community feeling if you turned him loose.'

This was another question which could have properly been disregarded. As worded, it would presuppose that the jury would act without any evidence. It was proper for the court to call to their attention that the verdict must be based on the evidence. Again, no prejudicial error occurred.

Appellant argues that error is shown in the following, which occurred during the qualification of the jury:

'Do any of you believe that the arrest and indictment of the defendant are some indication of his guilt?

'A Juror: If he has been indicted there must have been some reason why he was indicted.

'The Court: Would you have that same belief if I were to tell you, which I always do in every case, whether it is a capital case or any other, the fact that there is an indictment in the case is no evidence of the man's guilt?

'A Juror: Would you state that again, please?

'The Court: I said, would you still think that it was an indication, some indication of his guilt if he was indicted if the Court were to instruct you the fact that an indictment is returned against an individual is in no wise evidence of his guilt?

'A Juror: Yes, I would.

'The Court: You think so anyway?

'A Juror: Oh, no, I wouldn't.

'Lawyer Seay: Your Honor, we move to challenge this gentleman for a cause on the ground by his answers to the question he has exhibited some indication of feeling of guilt on the part of the defendant.'

The record shows no ruling on the motion. But we think the record does show that when the juror understood that the indictment was not evidence of guilt, he would follow the charge of the court on that subject. No error is shown in this instance.

It is charged that the court erred in failing to ask the group of seven if any of them were related by blood or marriage to the prosecutrix or any of the lawyers in the case. This question was asked all the other jurors, but was not one of the thirty-three questions requested by appellant.

The cases cited by appellant are instances where jurors withheld information and did not give the correct answer when questioned. This is not the situation here. There is no indication in this record that any juror was related to parties or attorneys. This question was not raised on the motion for a new trial and is raised for the first time on appeal.

The rule is that in failing to use reasonable diligence in testing jurors as to their qualifications or grounds of challenge there is a waiver of the ground of challenge; and the defendant cannot sit back and invite error because of a juror's qualification. Batson v. State, 216 Ala. 275, 113 So. 300; Beasley v. State, 39 Ala.App. 182, 96 So.2d 693. The rule was applies where it was later discovered that one of the jurors should not have served on the jury--in the Batson case, he was an alien, and in the Beasley case, he had been convicted of a crime involving moral turpitude. But here, there has been no showing of any incapacity to serve or the failure to answer any question correctly.

Substantial error is not presumed, but the burden is upon the appellant to show error. McCall v. State, 262 Ala. 414, 79 So.2d 51; Washington v. State, 259 Ala. 104, 65 So.2d 704; Kabase v. State, 244 Ala. 182, 12 So.2d 766. Appellant did not object to the omission of the question, nor did he request that it be asked. No reversible error has been shown.

Appellant argues that the physical examination and photographs made of him after his arrest violated his constitutional rights. This question...

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