Anthony v. State

• Decision Date: 24 October 1972
• Docket Number: 3 Div. 113
• Parties: Clarence ANTHONY v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 222

273 So.2d 222

49 Ala.App. 462

Clarence ANTHONY v. STATE.

3 Div. 113.

Court of Criminal Appeals of Alabama.

Oct. 24, 1972.

Rehearing Denied Nov. 21, 1972.

Jerry L. Cruse, Montgomery, for appellant.

William J. Baxley, Atty. Gen., and Samuel L. Adams, Asst. Atty. Gen., for the State.

HARRIS, Judge.

From a conviction of robbery and a fifteen-year sentence imposed by a jury in the Circuit Court of Montgomery County, this appeal is prosecuted. We have before us a transcript of the record, a demurrer to the indictment, a motion to dismiss the indictment and discharge the defendant, a plea of former jeopardy, refused affirmative charges, and a motion for a new trial.

The basis for the motion to dismiss the indictment and discharge the defendant, and the plea of former jeopardy, arise out of the following facts:

On May 19, 1970, the defendant, attended by counsel of his choice, was arraigned upon the indictment and entered a plea of not guilty. The case was set for trial on June 8, 1970, and in open court in the presence of the defendant and his counsel, a special venire of twenty-five jurors was drawn from the jury box to be added to the regular jurors, seventy-five in number, theretofore drawn for the week in which this cause was set for trial. It was ordered that a list of the regular jurors, and those specially drawn, making a total of one hundred jurors, be forthwith served upon the defendant by the sheriff, together with a copy of the indictment.

On June 8, 1970, the date set for the trial of this case, the following order was made and entered by the trial judge:

'This cause being before the Court and the Court in its sound discretion being of the opinion that the ends of justice would be defeated if the trial of this cause proceded in that the intent and purpose of the laws of the State of Alabama could not be enforced by the jury drawn to try the case, it is, therefore,

'ORDERED, ADJUDGED and DECREED that a mistrial be entered, this jury dismissed, and the Defendant held for trial at the next term of Court.

'DONE, this 8th day of June, 1970.

/s Richard P. Emmet

JUDGE'

We now look to the motion to dismiss the indictment and discharge the defendant, which was filed on July 21, 1970, and denied by the court on July 23, 1970, and to the plea of former jeopardy, filed on August 10, 1970, to determine the reason for the entry of the mistrial and dismissal of the jury.

On the date set for trial, the judge proceeded to qualify the jury and asked the panel: 'Do each of you subscribe to capital punishment? If you do not, please stand.' Five jurors stood, indicating that they did not subscribe to capital punishment. The trial court did not further interrogate these five jurors 'to find out whether their scruples would invariably compel them to vote against capital punishment.' Witherspoon v. State of Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776.

In construing Section 57, Title 30, Code of Alabama 1940, which gives the State the right to challenge for cause jurors who state they have a fixed opinion against capital punishment, the Supreme Court of Alabama has held that a simple answer to a general question addressed to a prospective juror as to any 'conscientious scruples' or 'opposition' or 'fixed opinion' against capital punishment is insufficient to excuse such juror upon a challenge because of such belief, opposition, or fixed opinion. Such venireman must be further examined to sufficiently show that he would automatically vote against the imposition of the death penalty no matter what the evidence introduced at the trial might reveal. Otherwise, it cannot be assumed such would be his position. Liddell v. State, 287 Ala. 299, 251 So.2d 601; Howard v. State, 287 Ala. 435, 252 So.2d 304.

It is our opinion that since Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346, the above cases and others of the same import can no longer be regarded as authoritative on this constitutional issue. Under Furman, the question of capital punishment is now moot.

The five jurors in this case who indicated their opposition to the imposition of the death penalty were not challenged in any manner and they remained on the 'strike list.' After the jury was struck and took their places in the jury box, they were given the usual oath by the Clerk. It was then discovered that one of the jurors who had voiced his opposition to capital punishment was among the twelve jurors. The court then recessed the case until 2:00 P.M. and sent the jury to lunch in charge of the court bailiff.

The trial judge then stated:

"One member of the jury was one of the very few of the 75 who stated that his moral conscience would not allow him to impose capital punishment. Knowing something of this case, I have never known a case in which capital punishment should not at least be asked for by the State. The State will have until 2:00, at which time this Court will adjourn to see if there is any possible way that this matter can be discontinued without running the risk of double jeopardy so that another panel can be more carefully drawn so that 12 jurors who at least believe in capital punishment will be given the opportunity to impose that punishment if they feel in their best judgment that that is what the punishment should be."

The court reconvened at 2:00, June 8, 1970. At that time, the Honorable Richard P. Emmet discharged the jury which had theretofore been selected.

It is not unreasonable to assume the mistrial was agreeable to appellant but that he entertained 'second thoughts' later; hence his plea of double jeopardy which was filed on August 10, 1970. The record is entirely silent as to whether the plea was ever brought to the attention of the court and it is certain that no ruling of the court was invoked and no further action was had thereon.

The proper method to raise the issue of former jeopardy is by special plea. Carty v. State, 43 Ala.App. 57, 179 So.2d 333, cert. den. 278 Ala. 707, 179 So.2d 335; Circuit and Inferior Court Rules, rule 30; Title 15, Section 288, Code of Alabama 1940.

In Parsons v. State, 179 Ala. 23, 60 So. 864, the Supreme Court said:

'Under the established practice in this state, the issue of former acquittal, conviction, or jeopardy must be tried separately and in advance of the issue of not guilty; and in felony cases the defendant cannot waive the operation of the rule. State v. Nelson, 7 Ala. 610; Faulk v. State, 52 Ala. 415; Moody v. State, 60 Ala. 78. * * *'

For other cases dealing with this matter, see Inman v. State, 39 Ala.App. 496, 104 So.2d 448; Morris v. State, 47 Ala.App. 132, 251 So.2d 629; Artrip v. State, 41 Ala.App. 492, 136 So.2d 574; Lyles v. State, 41 Ala.App. 1, 122 So.2d 724.

When does jeopardy begin? In Scott v. State, 110 Ala. 48, 20 So. 468, the Supreme Court said, as to the time when jeopardy begins in a criminal case:

'A plea of former jeopardy was interposed on the trial of defendant, which is imperfect, but is stated to have been pleaded in short by consent, and issue was taken on it. In Bell v. State, 44 Ala. 393, the court said, as to the time when jeopardy begins in a criminal case: 'The weight of authority seems to be, that when the jury has been impaneled and sworn, and the indictment read, and pleaded to by defendant, he is entitled to have the trial proceed to its conclusion. If it is then interrupted by a discharge of the jury, or other insufficient legal cause, he cannot be tried again.' This principle we apprehend as a general proposition, cannot be questioned. It seems to be generally agreed that to constitute jeopardy, the cause or accusation should in some form be submitted to a jury impaneled to try it.'

Turning again to the plea of former jeopardy, it is recited:

'The 12 jurors selected were seated in the jury box and sworn as provided by law by the Honorable John R. Matthews, Clerk of said Court. The jury was excused for lunch in the custody of the Bailiff, Honorable G. J. Rupenthal.'

Appellant, in brief, says:

'In this case the jury had been selected, impaneled and sworn. There is no question as to the jurisdiction of the court or the validity of the indictment. The indictment had not been read to the jury, nor had the defendant made any plea to the indictment in the presence of the jury. There had been no opening statement.'

Section 9, Constitution of Alabama 1901, provides as follows:

'That no person shall, for the same...