Beasley v. State

• Decision Date: 13 August 1957
• Docket Number: 4 Div. 313
• Citation: 96 So.2d 693,39 Ala.App. 182
• Parties: Virgil BEASLEY v. STATE.
• Court: Alabama Court of Appeals

Page 693

96 So.2d 693

39 Ala.App. 182

Virgil BEASLEY v. STATE.

4 Div. 313.

Court of Appeals of Alabama.

Aug. 13, 1957.

Douglas Brown and Henry B. Steagall, II, Ozark, for appellant.

John Patterson, Atty. Gen., and Robt. P. Bradley, Asst. Atty. Gen., for State.

CATES, Judge.

Virgil Beasley was, on August 3, 1955, indicted for carnal knowledge, or abuse in attempt thereat, of a female under twelve year of age. His trial September 14, 1955, in the Dale Circuit Court on a plea of not guilty resulted in a verdict of guilty with ten years' imprisonment as punishment. The defendant's motion for a new trial was overruled February 21, 1956, and the appeal was submitted here June 28, 1956.

The tendency of the State's evidence was:

The defendant, on the morning of July 14, 1955, had taken the prosecutrix, who was an eight year old girl, and six other young children swimming. He brought them back to the home of Mrs. Grace Pope, the mother of two of the group. Beasley testified he had started drinking that morning about 9:00 or 9:30 o'clock. He kept at it in some degree during the rest of the day.

In the afternoon Beasley, Mrs. Pope, her daughter, and two other girls--the prosecutrix and her twelve year old sister--went into the countryside to the home of Henry Holder where Beasley got whiskey. Thence the five of them went to Charlie Glenn's house. Thereafter, Beasley's drinking apparently affected his driving; he 'almost ran into' a fence, tree, then a post, and narrowly missed going into a ditch. Crossing a stream, he turned the car into some woods, as he testified, to allow himself to sober up.

The girls went off into the underbrush and were followed by Beasley who coerced each of them to yield to a perverted sexual act. This interlude was broken up by Mrs. Pope's blowing on the automobile horn. When the four of them returned to the car, Mrs. Pope wandered off and lay down beside the trail. One witness testified Beasley, on returning from the underbrush, 'pushed her (Mrs. Pope) on the car and bumped her head and she passed out.' It was then that the State would show the act complained of happened. The State's evidence, if believed, amply established and corroborated the commission of the offense.

The testimony adduced by Beasley was contradictory of the essential facets of the case for the prosecution. This presented a question for the jury.

Here Beasley says he did not have a fair trial at nisi prius because:

(1) At the noonday recess during the trial, Mr. D. A. Culverhouse, one of the jurors, contrary to the judge's direction, detached himself from the others, having returned to the jury room to retrieve his hat. Consequently, he lost contact with his fellows for some ten to fifteen minutes. The State did not attempt to meet the burden cast upon it to show this juror had not been tampered with. See Huddleston v. State, 37 Ala.App. 57, 64 So.2d 90, 97. However, the trial judge did call the errant juror as the court's witness. This examination clearly established that no one had spoken to Mr. Culverhouse and that he had not spoken to anyone about the case. This is sufficient proof to rebut the presumption of improper influence. Davis v. State, 209 Ala. 409, 96 So. 187; Wright v. State, 38 Ala.App. 64, 79 So.2d 66.

(2) On voir dire when the court was qualifying the jury, the venire was asked in effect if any among them had ever been convicted of a crime involving moral turpitude. William O. Jenkins was silent as to the question. Later he was chosen as one of the twelve impaneled who tried the case. In support of one of his grounds for a new trial, Beasley annexed a certified copy of a docket entry and bench notes of the Dale Circuit Court showing in 1933 a conviction and judgment (with appeal withdrawn) in a case of adultery against one Otto Jenkins. One of the jurors made an affidavit which was also annexed to the motion that the William O. Jenkins who served on the jury and Otto Jenkins are one and the same person. Beasley's counsel have both made affidavits as to their ignorance of Jenkins's conviction. There were affidavits the tenor of which was that Jenkins was active in the deliberations of the jury for prescribing possibly as much as the death penalty. The record fails to show the filing of any counter affidavits or any testimony on the hearing of the motion for a new trial.

Our enquiry on the ruling of the trial judge begins with, first, was conviction of adultery a ground for Jenkins's being mandatorily excused as a petit juror; second, did the defendant exercise due diligence to keep unqualified jurors being put upon him; and, third, if the first two questions are answered 'yes,' then was Jenkins's presence on the jury such a ground for a new trial that, upon proof of the averred facts of his conviction, the trial judge had no discretion but to grant a new trial?

As to the makeup of the jury roll and of the names in the jury box, Code 1940, Title 30, § 21, as amended by Act No. 325, General Acts 1943, p. 309, approved July 1, 1943, reads in part:

'* * * but no person must be selected * * * who has ever been convicted of any offense involving moral turpitude. * * *'

A parallel path is followed by Code 1940, Title 30, § 55, as amended by Act No. 260, Acts 1955, pp. 605, 606, approved August 23, 1955, which, in subdiv. 5, provides a good ground for challenge (inter alia) that a venireman 'has been convicted of a felony.' Code 1940, Title 30, § 64, relating to the examining and selecting of petit jurors in capital cases, provides that, 'the court must inquire into and pass upon the qualifications of all the persons * * * to serve as jurors.' See O'Rear v. State, 188 Ala. 71, 66 So. 81. In Hendry v. State, 215 Ala. 635, 112 So. 212, our Supreme Court construed predecessor provisions to §§ 55 and 64 in pari materia.

In Brown v. Woolverton, 219 Ala. 112, 121 So. 404, 406, 64 A.L.R. 640, the court, per Foster, J., said:

'* * * 'At common law the grounds for challenge were classified under four heads, as follows: (1) propter honoris respectum; as, if a lord of Parliament be impaneled on a jury, he may be challenged by either party, or he may challenge himself; (2) propter defectum; as if a juryman be an alien born, this is defect of birth; (3) propter affectum, as for suspicion of bias or partiality--this may be either a principal challenge, or to the favor; (4) challenges propter delictum are for some misdemeanor or crime which affects the juror's credit and renders him infamous, as for conviction of treason, felony, perjury, or conspiracy. A challenge propter affectum is of two kinds: a challenge to the favor and for principal cause.' 16 R.C.L. 254. The common-law grounds as far as applicable to our system and not changed by statute remain for our guidance. Our statute has added certain grounds of challenge for cause, but they are not exclusive of the common law remaining unchanged. * * *' (Italics ours.) See also dictum in Wyatt v. State, 36 Ala.App. 125, 57 So.2d 350.

And in Bacon's Abridgment, we find under the heading of Juries:

(E) 1. 'A principal (cause of challenge) is grounded on such a manifest presumption of partiality, that if it be found true it unquestionably sets aside the array or the juror * * *'

(E) 2. 'Also, infamy is a good cause of challenge to a juror; * * * And it hath been holden, that such exceptions are not solved by a pardon. * * *' Brown v. Crashaw (1624), 2 Bulstrode 154.

In State v. Brockhaus, 72 Conn. 109, 43 A. 850, 851, the court, in considering review of a judgment denying new trial on the ground a juror was under age, by way of dictum, said:

'As to the qualifications of jurors, there are some which may be called inherent. They are those necessary to impartial and honest action. A disqualification of this kind is ordinarily fatal, unless it is known to exist at the time of trial, and is then waived. The want of other qualifications directed by custom or statute for general reasons of policy, and which cannot substantially affect the capacity or impartiality of a juror, does not constitute a defect, unless discovered and taken advantage of before verdict. This seemingly underlies the distinction drawn at common law between challenges propter affectum and delictum, and challenges propter defectum. It furnishes the test whether the irregularity is one absolutely healed by verdict, or is one giving sufficient ground for new trial, unless known to and waived by the party complaining. * * *'

Guilt of adultery involves moral turpitude, Norris v. State, 229 Ala. 226, 156 So. 556. And while, under Code 1940, Title 14, § 16, the third conviction of adultery with the same paramour is punished as a felony (Code 1940, Title 1, § 7), we assume (without deciding) that here Jenkins was convicted of a misdemeanor. Hence, a judgment of adultery, obeyed and endured, though only for a misdemeanor, is a ground for challenge for cause to the selection of a juror because (in addition to its statutory effect of precluding a man from the jury roll, § 21, supra) at common law it was for an infamous offense for which 'he hath received judgment of the pillory, tumbrel, or the like; or to be branded, whipt, or stigmatized; or if he be outlawed or excommunicated,' (italics supplied) and would support a challenge propter delictum, iii Bl.Com. 361, 362, which cites Coke 1 Inst., p. 156. Blackstone further says that in 1650 wilful adultery was made a capital crime, though at the Restoration the offense was relegated to the church courts, 13 Chas. II, St. 1, c. 12. So that Stephen says that in his day adultery would have still been theoretically cognizable before the Archdeacon. But this placing of jurisdiction in the church courts did not make adultery any the less of an offense, since from the time of Henry VIII the ecclesiastical courts became the King's courts and their law was part of the English common law, MacKonochie v. Lord Penzance (1881), 6 A.C. 424, at p. 446. Even with...