Baxley v. State
| Decision Date | 20 June 1921 |
| Docket Number | 4 Div. 701 |
| Citation | 18 Ala.App. 277,90 So. 434 |
| Parties | BAXLEY v. STATE. |
| Court | Alabama Court of Appeals |
Rehearing Denied Oct. 4, 1921
On Rehearing.
Appeal from Circuit Court, Houston County; H.A. Pearce, Judge.
Joe Baxley and Luther Folkes were jointly indicted for the murder of one S.B. Sanders, and Joe Baxley was found guilty of manslaughter and Luther Folkes guilty of assault and battery and from the judgment Joe Baxley appeals. Affirmed.
Certiorari denied, 90 So. 925.
After testifying as to conditions as he found them at the place of the homicide and as to the position of the body of the deceased, the witness Tatum was asked "What did you see under the base shelf of the store?" and the witness answered, over the objection of the defendant, "I saw blood where it was spattered up against the wall, and there was a little portion of flesh there." The witness Etheridge saw the difficulty and was permitted to testify as to what happened between Folkes and Sanders prior thereto. While the witness Alex Starling was being examined, the solicitor said:
"Let me refresh your recollection; didn't you testify in the former trial of this case, and also didn't you tell me in the room there this morning, in the presence of Mr. Tatum and several others, that at the time the gun fired you could see Folkes very well, and that Folkes was right on Sanders, you might say, down on him, getting off him, and that they were fighting, the best you could see."
Refused charge 8 is as follows:
If the state's evidence in this case consists in the statement of witnesses of the truth of which the jury have a reasonable doubt, then they cannot convict thereon, although they may not believe defendant's witnesses.
Farmer Merrill & Farmer, of Dothan, for appellant.
Harwell G. Davis, Atty. Gen., for the State.
On the trial, and while the jury was being organized, the trial judge examining the jurors called to try the case, on their voir dire, after asking the usual questions suggested by the statute, asked each juror in turn the following question: "Has Henry Nichols or Chilton Napier, either one, spoken to you in regard to this case, or spoken to you at all about it?" The defendant made known to the court at the time that Napier was a witness summoned in his behalf, and objected to the question and excepted to the action of the court in overruling his objection.
The record does not disclose the answer of the several veniremen to this question, but presumably the answer was each time in the negative; it not being shown that any further proceedings were taken in furtherance of the question. No juror was excused or challenged as a result of the question, and it is not shown that any juror answered in such manner as to impugn the testimony of the defendant's witness. If the answers were in the negative, the only effect would be to clear the parties named of any improper acts connected with the trial. If, on the other hand, the answers had been in the affirmative, the trial court was entitled to the information, that he might discharge his duty under sections 7279 and 7280 of the Code of 1907, to the end that the defendant might have a fair and an impartial trial before an impartial jury, as is guaranteed to him under section 6 of the Constitution of Alabama. Watson v. State, 15 Ala.App. 39, 72 So. 569. Moreover, it does not appear from this record that the defendant was injuriously affected by the ruling of the court.
The transcript does not contain, and in this case did not need to contain, the order covering the special venire, if one was in fact made, and it not appearing to the contrary, it will be presumed that all of the proceedings in this regard were regular. Acts 1915, p. 708; Anderson v. State, 204 Ala. 476, 85 So. 789. Besides, the judgment entry shows conformity to circuit court rule 30.
The testimony of a prior difficulty between the joint defendant Folkes and the deceased was relevant as against Folkes. Folkes v. State, 17 Ala.App. 119, 82 So. 567. The court in its charge to the jury clearly limited this testimony to Folkes. This was all this defendant was entitled to. Folkes v. State, supra. It will be observed that in the case at bar the testimony was not objected to on the ground that the details of a former difficulty were called for. Had this ground of objection been interposed, the authorities cited in appellant's brief would be in point.
The answer of the witness Tatum, "I saw blood where it was spattered up against the wall," was the statement of a collective fact. Besides, no objection was interposed to the question eliciting the answer, and therefore the motion to...
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McWhorter v. State
...the trial, a trial court would be required to excuse such a juror in order to ensure a fair and impartial trial. Baxley v. State, 18 Ala.App. 277, 278-79, 90 So. 434 (1921). In the present case, the appellant did not object to excusing this potential juror, and no plain error occurred. It i......
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Killingsworth v. State, No. CR-06-0854 (Ala. Crim. App. 11/13/2009)
...trial judge, and appellate courts will not interfere with this discretion, so long as no abuse of power is shown.' Baxley v. State, 18 Ala. App. 277, 279, 90 So. 434, 435, cert, denied, 206 Ala. 698, 90 So. 925 (1921) . In this case, the record includes the reasons the veniremembers gave fo......
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McNair v. State
...trial judge, and appellate courts will not interfere with this discretion, so long as no abuse of power is shown." Baxley v. State, 18 Ala.App. 277, 279, 90 So. 434, 435, cert. denied, 206 Ala. 698, 90 So. 925 B. Death Penalty Four veniremembers were removed because of their belief on the d......
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Turner v. State
...the trial judge, and appellate courts will not interfere with this discretion, so long as no abuse of power is shown.' Baxley v. State, 18 Ala.App. 277, 90 So. 434, 435, cert. denied, 206 Ala. 698, 90 So. 925 McNair v. State, 653 So.2d 320, 325 (Ala. Crim.App.1992), aff'd, 653 So.2d 353 (Al......