Blackmon v. State

• Decision Date: 19 April 1945
• Docket Number: 8 Div. 280.
• Citation: 22 So.2d 29,246 Ala. 675
• Parties: BLACKMON v. STATE.
• Court: Alabama Supreme Court

22 So.2d 29

246 Ala. 675

BLACKMON v. STATE.

8 Div. 280.

Supreme Court of Alabama

April 19, 1945

Rehearing Denied May 17, 1945.

Joe Starnes, of Guntersville, for appellant.

Wm. N. McQueen, Acting Atty. Gen., and Forman Smith, Asst. Atty. Gen., for the State.

On cross-examination of defendant's witness Tempic Blackson, by Mr. Scruggs, Special Counsel for the State, the following occurred:

'Q. What other guns was he [defendant] trading on except to Loyd Scott and the one he bought from Sam Smith, that you say belonged to you and that gun laying there?

'Mr Street [defendant's attorney]: I cannot understand the question.

'Mr Scruggs: We are not responsible for that.

'The Court: I think he asked what other guns he traded on except those mentioned.'

On further examination of the witness, with respect to a statement made by her, and after attorney for defendant had interposed a question, the following occurred:

'Mr Scruggs: She is my witness.

'Mr. Street: I want to retire with her.

'Mr. Scruggs: I don't want him to get hold of her before I get through with her.

'The Court: You can get it [the statement] when they introduce it, Mr. Street.

'Mr. Street: I am trying to wipe these false statements away.

'Mr. Scruggs: He will have to do a lot of wiping before he gets rid of this one.

'The Court: Gentlemen, that is a question for the jury, who is right and who is wrong.'

THOMAS Justice.

The appeal is from a conviction for murder in the first degree and the imposition of the punishment of life imprisonment.

The body of W. M. Coleman, the policeman for the Town of Arab, on August 14, 1943, was found lying on the sidewalk, several bullet wounds having been inflicted thereon, any one of which was capable of producing death. Several members of the Blackmon family were arrested, and indicted, for the alleged murder, viz: Ben, Tempie and Chris Blackmon.

Chris Blackmon, who had left Marshall County many years before for a distant state, was visiting in the county prior to and at the time of the killing. In his testimony he said that in the early morning hours of the date named, he left the county by way of Huntsville for Memphis, Tenn., where he was apprehended. After his indictment for murder in the first degree, he because a witness for the state in connection with the death by homicide of Coleman, and his testimony tended to implicate defendant Ben Blackmon and his wife Tempie. The rules of conspiracy in the commission of a crime and of corroboration testimony of a conspirator need not be repeated. Code 1940, Tit. 14, § 99; Clark v. State, 240 Ala. 65, 197 So. 23; Abingdon Mills v. Grogan, 167 Ala. 146, 52 So. 596. And evidence tending to show motive on the part of either conspirator to consummate the crime is admissible against both. Stone v. State, 105 Ala. 60, 17 So. 114.

The recent authorities dealing with statutes requiring special venires in capital prosecutions including persons drawn on regular juries for the week or order for special venire were considered in Smallwood v. State, 235 Ala. 425, 179 So. 217.

In Stinson v. State, 223 Ala. 327, 135 So. 571, it was declared that statutes permitting courts to excuse prospective jurors cannot be construed as modifying statutes requiring the court to order venire in capital cases; that they may be summoned to appear and examined as to their qualifications. And in Dodd v. State, 241 Ala. 152, 1 So.2d 671, the Smallwood case, supra, was referred to and the reason for the rule that obtains stated to be that it was in order that the defendant may know of the exemptions claimed by the prospective juror, and the grounds on which the court acted in excusing a juror from serving.

On the point at issue, it is noted that the general provisions of the Code 1940, Tit. 30, § 5, are that the court may excuse from service any person summoned as a juror if he is disqualified or exempt, or for any other reasonable and proper cause, to be determined by the court. We have indicated that in capital cases the qualifications must be determined on the day of the trial so that a defendant may protect his interest by proper exception, if he desires to reserve the same. The effect of the decision in White v. State, 201 Ala. 387, 78 So. 449, and authorities there collected, is that the trial court was authorized at the proper time to hear excuses of jurors and in its discretion to excuse jurors 'for reasonable and proper cause.' Letson v. State, 215 Ala. 229, 110 So. 21.

The appellant's insistences of error as to the several jurors may be stated as follows: 'The trial Court erred when it excused the regular juror, Will H. Wright, and special jurors, A. C. Simmons, Edgar King and Simp Seibold, over the objection and exception of the defendant. The record should affirmatively show that a juror is disqualified or exempt or that other reasonable or proper causes existed before excusing jurors over the objection and exception of the defendant in a capital case. The Court's exercise of discretion in excusing jurors from duty in the trial of a capital case must be founded within reason, justice, and in consonance with the defendant's constitutional rights. The Court does not have the right to excuse a regular or special juror from service in a capital case capriciously, or for no reason at all.'

Looking to the record, it was determined at the trial that, the regular juror Wright was engaged in government work. Special juror Simmons was actually engaged in mending and repairing airplane tires used by the government, and was known as a 'goverment worker.' For that reason he was excused. Special juror Edgar King was excused because he was employed at the Huntsville Arsenal and all know that is war work. The court stated that special juror Seibold was a veterinarian and meat inspector for the government, and he had some meat to inspect. For that reason he was excused.

During the process of qualifying jurors in panels of twelve, counsel for defendant stated to the court that it was the duty of the court to ask a juror to 'stand aside' when he stated he had a fixed opinion. The court replied, 'I think it is a matter for challenge.' Exception being reserved, the court said, 'Karl Medlock will stand aside for his stated fixed opinion.' Defendant's counsel objected to juror Daney Pope McLendon going on the jury because of a mistake in the spelling of his first name. The court permitted said juror to stand aside for the instant case, even though he was on the regular jury.

In the foregoing rulings of the court, touching qualifications of regular and special jurors, there was no error. Such rulings were not capricious or arbitrary, but were within the sound discretion to be exercised by the trial court.

Exception was reserved and urged in argument as reversible error relative to the question that the wife and daughter of deceased be excused from the rule. Whereupon the defendant's attorney requested that the wife and son of defendant Ben Blackmon be excused. One of the attorneys for the state then stated, 'No, they were eye witnesses.' To this observation, objection and motion to exclude were made, as being highly prejudicial to defendant. The court ruled as follows: 'Gentlemen of the Jury, you will have to determine who were the eye witnesses.' Any statement 'made by either side as to who saw or did not see it should have no effect on you. You will find from the stand who the witnesses were.' In this action of the court there was no error. This was before any testimony had been introduced and directed to the court on which it could exercise a reasonable discretion in excusing interested parties from the rule. It will be noted that the expression contained in Dunmore v. State, 115 Ala. 69, 22 So. 541, was without the testimony, being discussed in argument of counsel, where the improper remarks were held to be reversible error.

Defendant objected to questions propounded to witness Carter, moved to exclude the answers relating to the habit and custom of deceased in the way he carried his pistol, the kind it was, and the way it was loaded. However, this witness disclosed a personal knowledge of deceased's pistol. His testimony corroborated witness C. C. Blackmon, who testified as to appellant's possession of deceased's cap and pistol immediately after the shooting. The question propounded to C. C. Blackmon was, 'Tell us what was said in that conversation' (between C. C. Blackmon and witness while in jail), and he said, 'I asked Ben this question, 'What had me puzzled is why you would bring the cap and gun away in the first place,' and he said, 'When you handle things, you leave finger prints', that is the way he said it.' The witness Blackmon testified as to defendant having the pistol and cap immediately after the shooting of deceased and giving it to him with direction by defendant to take the 'stuff and wait up there and we will pick you up when we come.' Ben said, 'You keep this stuff. No telling who will be there and I don't want them to see it. Ben's wife handed me the two guns, pistols, and the policeman's cap.' Further, that Ben came for him, Glenn was driving Ben's car, and Will Knight was in the back seat. That witness concluded by saying, 'I went around back of the car and got in, threw the cap on the floor board and the gun in the seat. Ben came up to the driver's side of the car and told Glenn, 'Be damn sure you get rid of all of that stuff.' * * *.'

The testimony of Carter was material as it tended to connect the defendant with Chris Blackmon's possession of deceased's property. The fact that at this point in the evidence there was no positive identification of either the pistol or the cap which Coleman had and wore the night he was killed merely goes to the...