Brickley v. State

• Decision Date: 08 October 1970
• Docket Number: 8 Div. 326
• Citation: 286 Ala. 546,243 So.2d 502
• Parties: Kenneth L. BRICKLEY v. STATE of Alabama. Ex parte Kenneth L. BRICKLEY.
• Court: Alabama Supreme Court

Page 502

243 So.2d 502

286 Ala. 546

Kenneth L. BRICKLEY v. STATE of Alabama Ex parte Kenneth L. BRICKLEY.

8 Div. 326.

Supreme Court of Alabama.

Oct. 8, 1970.

W. A. Barnett, Florence, for appellant.

MacDonald Gallion, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State.

COLEMAN, Justice.

Defendant was convicted of murder in the second degree. The Court of Appeals affirmed, defendant applied to this court for certiorari, and the writ was granted.

1.

Defendant says that the Court of Appeals erred in holding that the trial court did not err in refusing defendant's requested affirmative charge as to the first count of the indictment. The indictment recites:

'The Grand Jury of said County charge, that before the finding of this indictment, Kenneth Brickley, whose name is unknown to the Grand Jury other than as stated, unlawfully and with malice aforethought, killed Lori Ann Wyma, by beating her with the handle of a wooden brush,

'Count two: The Grand Jury of said County further charge, the before the finding of this indictment, Kenneth Brickles, whose name is unknown to the Grand Jury other than as stated, unlawfully and with malice aforethought, killed Lori Ann Wyma, by beating her with his hand or fist, against the peace and dignity of the State of Alabama.'

Defendant argues that there is not any evidence that deceased '. . . was killed by beating her with a handle of a wooden brush.'

We do not find in the statement of the evidence by the Court of Appeals any mention of 'a wooden brush.'

'. . . the mere showing of the use of a fist does not make out use of a weapon. Corcoran v. State, 18 Ala.App. 202, 89 So. 835; Bean v. State, 77 Okl. Cr. 73, 138 P.2d 563; State v. Rizor, 353 Mo. 368, 182 S.W.2d 525.' Cozart v State, 42 Ala.App. 535, 541, 171 So.2d 77, 83; certiorari denied, 277 Ala. 698, 171 So.2d 84.

In affirming a conviction for crime, the Court of Appeals said:

'The testimony adduced on the trial tended to support, in the way requisite to sustain a conviction, only the first three counts of the indictment. . . ..' Jones v. State, 28 Ala.App. 254, 256, 182 So. 402.'

In reversing the Court of Appeals, this court said:

'The opinion shows counts 4, 5, and 7 were not supported by evidence sufficient to justify a verdict of guilty. Our cases hold that, when the affirmative charge as to such count is refused, and there is a general verdict of guilty, though some of the counts are supported by some aspects of the evidence, the denial of the affirmative charge as to other counts is reversible error. Hawes v. State, 216 Ala. 151, 112 So. 761; Ross v. Washington, 233 Ala. 292, 171 So. 893.

'As we understand the opinion of the Court of Appeals, that is the state of this record. If so, there was error in refusing the affirmative charge as to counts 4, 5, and 7, leading to a reversal.' Jones v. State, 236 Ala. 30, 33, 182 So. 404, 406.

In the case at bar, the Court of Appeals says:

'. . .. The evidence going to show what instrument was used in committing the offense is left in inference and was a question for jury decision. . . .'

If an inference is to be drawn that defendant beat deceased with a wooden brush, there must be some sort of competent evidence indicating that a wooden brush was used in the beating. 'Inference must have a palpable beginning.' Cozart v. State, supra. '. . . one presumption or inference may not be based upon another. McManimen v. Public Service Co. of Northern Illinois, 317 Ill.App. 649, 47 N.E.2d 385.' Black's Law Dictionary 4th Ed. 1951, page 918. '. . . one presumption of fact cannot be based upon another. Vernon v. United States, 8 Cir., 146 F. 121; State v. Lackland, 136 Mo. 26, 37 S.W. 812.' Carr v. State, 28 Ala.App. 466, 468, 187 So. 252, 254, (4, 5).

If there is in the record no evidence showing that a wooden brush was used in the beating of deceased, the denial of defendant's requested Charge B was reversible error.

The Court of Appeals does not expressly state that all the material evidence in the instant case is set out in the opinion of that court. If all the evidence is set out in the opinion, there is no evidence sufficient to show that a wooden brush was used in the beating and the judgment of conviction is due to be reversed. Whether the record contains such evidence is an issue to be determined by the Court of Appeals in the first instance.

2.

Defendant asserts that the trial court erred in denying him a new trial on the grounds of his motion which assert that he was prejudiced in his right to trial by a jury free from improper, extraneous influence as a result of the bailiff's entering the room where the jury was deliberating and remaining in the room with the jury behind the closed door for eight minutes.

The affidavits filed by defendant in support of his motion show that the bailiff did so remain with the jury. The affidavits further show that the bailiff returned to the court room and had a conversation with the trial judge, which conversation is unknown to affiant; and that shortly thereafter the jury was returned to the court room and received further instructions.

The state did not offer any evidence of any kind in opposition to the motion for new trial.

'To secure to one accused of crime a fair and impartial trial, general rules as to the policy of the law are: (1) To keep the jury in a criminal case entirely separated from the world, permitting no outside communication with them from the beginning of the trial until the verdict is rendered, and that nothing shall occur outside of the trial which shall disturb their minds, leaving the jury entirely occupied with a consideration of the case which they are sworn to try (Shaw v. State, 83 Ga. 92, 9 S.E. 768; 134 Am.St.Rep. 1040, note); . . . (4) that all courts are agreed that no communication whatever ought to take place between the judge and the jury after the cause has been committed to them, unless in open court, and, if practicable, in the presence of counsel in the cause (Johnson v. State, 100 Ala. 55, 14 So. 627; Cooper v. State, 79 Ala. 54; McNeil v. State, 47 Ala. 498; Rafferty v. People, 72 Ill. 37; State v. Rowell, 75 S.C. 494, 56 S.E. 23), and no improper communication be had between jurors and court officers while deliberating and trying to reach a verdict (134 Am.St.Rep. 1047); . . ..' Leith v. State, 206 Ala. 439, 443, 444, 90 So. 687, 691.

In reviewing a trial had on an indictment for murder, this court, in an early case, had this to say:

'The objection urged in this case for a new trial is, that during an adjournment, pending the trial, one or more of the impanelled jurors was permitted to absent himself from the body of the jury, unattended by an officer. It is not shown that these jurors conversed with any person, or were conversed with, while they were so absent from their fellows. The implications from the bill of exceptions are, that such was not the case. The mere fact that jurors, pending a trial for felony, are not kept together in the care of an officer, is not necessarily ground for a new trial. In appellate courts which entertain jurisdiction on appeal from orders coverruling such motions, a new trial is not a matter of course, from the mere fact that the jury had not been, all the while, kept together under the eye of the officer. Some courts hold that, Prima facie, such irregularity calls for a new trial, and the Onus is on the prosecution to show affirmatively that the jury had not been tampered with. Possibly, this is the safer and sounder rule. The inquiry is easily made, and a proper investigation had, in the court trying the cause. If any of the jurors have been conversed with, on questions affecting the prisoner's guilt; or, if other influences have been exerted, which may have biased their deliberations, a new trial should be granted. On the other hand, if there be an entire negation of such interference, there is no ground for setting aside the verdict. Williams v. State, 45 Ala. 57; Morgan v. State, 48 Ala. 65; Williams v. State, Id. 85; 1 Bish.Cr.Proc. §§ 993, 999, and note 4.' Butler v. State, 72 Ala. 179, 180.

Butler has been cited and followed many times as an inspection of Shepard's Alabama citations will show. In one such case this court said:

'But such separation pending a trial is said to be not necessarily ground for a new trial, but is sufficient to show a prima facie right to it, and the burden is upon the state, after such separation is shown, to prove that the jurors conversed with no one affecting the prisoner's guilt, and that no other influences...