Beecher v. State

• Citation: 193 So.2d 505,280 Ala. 283
• Decision Date: 06 October 1966
• Docket Number: 8 Div. 208
• Parties: Johnny Daniel BEECHER v. STATE of Alabama.
• Court: Supreme Court of Alabama

Page 505

193 So.2d 505

280 Ala. 283

Johnny Daniel BEECHER v. STATE of Alabama.

8 Div. 208.

Supreme Court of Alabama.

Oct. 6, 1966.

Rehearing Denied Jan. 12, 1967.

John B. Tally and H. O. Weeks, Scottsboro, for appellant.

Richmond M. Flowers, Atty. Gen., and Leslie Hall, Asst. Atty. Gen., for the State.

LIVINGSTON, Chief Justice.

Johnny Daniel Beecher, alias Johnnie Johnson, alias Johnny Duke, was indicted by the Grand Jury of Jackson County, alabama, on July 29, 1964. The indictment contained three counts: Count 1 charged the defendant with murder in the first degree of Martha Jane Chisenall; Counts 2 and 3 were identical and charged the defendant with raping Martha Jane Chisenall on two different occasions. The two counts for rape were later nolle prossed. The appellant was tried on the count charging first degree murder, found guilty and sentenced to death.

The case comes to us under the Automatic Appeal Statute, Title 15, Sec. 382(1) et seq., Code of Alabama 1940, Act No. 249, Gen.Acts 1943, p. 217, 1958 Recompiled Code.

The evidence tended to prove that at the time the murder was committed, the appellant was a prisoner of the State of Alabama, serving a sentence for rape, and was an escapee from Camp Scottsboro, a road camp located in Jackson County, Alabama.

On the morning of June 15, 1964, a crew of convicts, including the appellant, under the supervision of a Mr. Claude Sisk, a state convict guard, left Camp Scottsboro and proceeded to where they were then working. They stopped at a Mr. Roper's and got a keg of water, than went down to a barn, somewhere close to a mile away, and then stopped and started building a fence off the right of way of a highway. Mr. Sisk told appellant to go around the barn and pull up a post and bring it to him. Sisk turned around to cut some wire and missed appellant. That was when appellant 'ran.'

The place where appellant 'ran' was some 8/10 of a mile from the home where Mr. and Mrs. Chisenall lived.

Mrs. Chisenall's body was found on June 16, 1964, some distance from her home. It was packed in a shallow hole and covered with dirt and leaves. She was blindfolded, her hands were tied behind her, and her feet were also tied together.

The defendant was arrested by officers of South Pittsburgh, Tennessee, on Wednesday, the 17th day of June, 1964. On the same day, a complaint and warrant of arrest were issued and later served on appellant. In making the arrest, appellant was shot in the right leg. He was carried to the hospital in South Pittsburgh and given shots to ease his pain. A short time later that day he was put in an ambulance and carried to Kilby Prison, located just outside the City of Montgomery, Alabama. The place where he was apprehended is some 200 miles from Kilby Prison.

As above stated, the Grand Jury of Jackson County returned an indictment on July 29, 1964. On August 14, 1964, reputable counsel of Scottsboro, Alabama, was appointed by the trial court to defend the appellant.

A warrant of arrest, pursuant to the indictment, was issued on July 29th and shows that it was executed by arresting the appellant and delivering him to Kilby Prison on August 17, 1964 (as a matter of fact, appellant was in Kilby Prison when the warrant was served on him and had been there since June 17, 1964).

Certain preliminary motions were made by the court-appointed counsel and we will dispose of those matters first.

On September 2, 1964, the court-appointed counsel filed a petition praying that the appellant he committed to the custody of the Superintendent of Alabama State Hospitals under the provisions of Sec. 425 of Title 15, Code 1940 (1958 Recompiled Code), for the purpose of a sanity examination.

The trial court ordered this motion to be set down for hearing on September 9, 1964, at 1:30 p.m. The motion was heard on evidence ore tenus, was denied and overruled by the trial court on the 10th day of September, 1964.

The court is under no mandatory duty, upon application, to appoint a lunacy commission or to direct the Superintendent of the State Hospitals for the Insane to examine a person charged with a capital offense and to make a report as to his sanity, but such action is discretionary with the presiding judge in the light of the evidence presented to him in connection with such application, and the overruling of the motion is not reversible error.

As pointed out by this Court in Aaron v. State, 271 Ala. 70, 122 So.2d 360:

'Section 425, Title 15, Code 1940, does not make it the duty of the presiding judge, upon application, to appoint 'not less than three reputable specialist practitioners in mental and nervous diseases' or the Superintendent of the Alabama State Hospitals to examine a defendant charged with a capital offense and make a report as to his mental condition. The making of such appointments are within the discretion of the presiding judge. Campbell v. State, 257 Ala. 322, 58 So.2d 623, and cases cited.'

See also Ex parte State ex rel. Patterson (In re Silas Coma Garrett), 268 Ala. 524, 108 So.2d 448. There was no error in overruling appellant's motion.

The appellant is a member of the Negro race.

By motion to quash the indictment filed on September 2, 1964, and by plea in abatement to the indictment, filed on September 10, 1964, counsel for appellant raised the question of the systematic, intentional and deliberate exclusion of qualified Negroes, both from grand jury and petit jury service in Jackson County, Alabama. The motion to quash the indictment was set for hearing on September 9, 1964, and heard on evidence taken ore tenus before the court. On the 10th day of September, 1964, the trial court denied the motion to quash the indictment. By agreement of counsel for appellant and counsel for the state, the plea in abatement filed on September 10, 1964, was submitted on the same evidence as was the motion to quash the indictment. The plea in abatement was overruled on September 10, 1964. From the evidence, the trial court found the following facts and entered the following judgment:

'Defendant in this cause has filed a motion to quash the indictment rendered in this cause by the Grand Jury of Jackson County, Alabama, on the ground of systematic, intentional and deliberate exclusion of members of the Negro race from service on the Grand Jury. Testimony has been heard orally by the Court in support of such motion, as well as the testimony of the State offered in opposition of same.

'This Court is aware of the rule which has been announced by the United States Supreme Court with reference to the systematic exclusion from jury service of members of the Negro race. The Court is further aware of its responsibility in regard to this defendant, who is a member of the Negro race.

'Defendant's evidence was, in the main, based on the testimony of two persons, Mr. Frank Grigg, the former Circuit Clerk of Jackson County, and Mr. B. B. McKenzie, the present Circuit Clerk of Jackson County. Mr. Grigg testified that he was the Circuit Clerk of said County for approximately 13 years, having assumed office in 1946, and terminating his service on January 19, 1959. Aside from other aspects of his testimony, it was clearly shown that a number of Negroes were at all times on the roll of jurors for said County, and that a number of them were called for jury service from time to time. He did state, however, that in all the years of his service, no Negro has served as a member of the Grand Jury in Jackson County, Alabama, to his knowledge. Mr. Grigg explained the procedure of selecting Grand Jurors from the jury panel, which procedure is set forth in Section 38 of Title 30, Code of Alabama, Recompiled in 1958. Mr. B. B. McKenzie the present clerk, testified that he had not known of a Negro serving on the Grand Jury of said County for the time he has served in the office of Circuit Clerk, but he testified that a number of Negroes had been called for Jury service from time to time. There was also adduced certain aspects of evidence relating to the use of the letter 'c' following the name of jurors to denote their color. It was the testimony of each of these persons that this practice had long since been discontinued, and that perhaps some cards in the jury box might have such a designation, but that such cards were few, and were perhaps holdovers from years past.

'Mr. Grigg, upon being re-called for further cross-examination by the State, testified that in his judgment some 35 to 50 names of Negroes were on the jury roll during his tenbure of service, and that the jury roll consisted of an average of 1000 persons during his time. Mr. Grigg was asked to identify by name the Negroes who were on the 1957 jury roll. Mr. Grigg positively identified some 13 persons who were on this roll as Negroes, and stated that others perhaps were named whom he did not recall.

'It was stipulated by counsel that the 1960 population figures were as follows: Total population for Jackson County in 1960--36,681. Of this number, the census report showed 2,231 to be Negroes.

'Judge W. J. Haralson, one of the Circuit Judges of the 9th Judicial Circuit of Alabama, testified that he had been a Judge in this Circuit for more than 23 years. He further testified that he had no independent recollection of a Negro serving on the Grand Jury of Jackson County, during this time, although Negroes had served on the Grand Juries of other Counties within the Circuit. He explained the manner in which Grand Juries are selected, and testified that they are drawn by lot from a hat, and that no method of selection is used. Judge Haralson testified that he was familiar with the fact that Negroes have been called to serve on the jury panels of the County, and that on occasions, no Negroes would be on the panel. He further testified that no method of selection is used in drawing jury panels, but that jurors are drawn from the jury box which make up the venire by lot.

'Mr. Ed Hastings, the present...