Brown v. State, 3 Div. 18

CourtAlabama Court of Criminal Appeals
Citation45 Ala.App. 391,231 So.2d 167
Docket Number3 Div. 18
PartiesTony Ray BROWN v. STATE.
Decision Date27 January 1970

Page 167

231 So.2d 167
45 Ala.App. 391
Tony Ray BROWN
3 Div. 18.
Court of Criminal Appeals of Alabama.
Jan. 27, 1970.

Page 168

[45 Ala.App. 392] Edwin C. Page, Jr., Evergreen, for appellant.

MacDonald Gallion, Atty. Gen., and Jasper B. Roberts, Asst. Atty. Gen., for the State.

CATES, Judge.

Murder, second degree; punishment: 20 years in the penitentiary.

The State's evidence tended to show: that on the night of December 20, 1968, Garrett Gill, Sterling Watkins (decedent herein) and decedent's son, Elmire Watkins, were driving in Gill's automobile; all three were sitting on the front seat of the car with Gill driving, Elmire in the middle and decedent next to the door. As Gill turned off a highway onto a road which lead to decedent's house, appellant in another vehicle turned in behind them and

Page 169

[45 Ala.App. 393] hollered, 'Stop the God damn car,' then bumped into the back of Gill's car and fired a shot from a rifle. Gill then stopped at the next street and appellant pulled up on the other side.

Appellant then got out of his vehicle with the rifle and came over to Gill's car cursing and accusing Gill of almost causing him to wreck. Appellant placed the rifle against Gill's forehead and when Gill pushed it back, said, 'don't you put your hands on my gun, you black son of a bitch, or I'll blow your brains out.' Appellant then struck the rifle back into Gill's car and fired it from right behind Gill's head causing a bullet to strike decedent in the forehead. Appellant then walked off cursing and said, 'you better not tell no law about it because if they come looking for me, I'm going to come looking for you,' then shot again. Whereupon, Gill left and drove straight to the hospital where decedent was pronounced dead.


The first claim of error rests on Code 1940, T. 30, § 52 which reads:

'In civil and criminal cases, either party shall have the right to examine jurors as to their qualifications, interest, or bias that would affect the trial of the case, and shall have the right, under the direction of the court, to examine said jurors as to any matter that might tend to affect their verdict.'

The occasion for appellant's claim is set out in the record as follows:


'THE COURT: Let the record show that the attorney for the defendant moves that the following named jurors who resided in the Repton area, to-wit: (listing five), be examined on their oaths separate and apart from other members of the jury panel respecting their knowledge of the facts of the case and any possible interest or bias they might have against the defendant and whether or not they had heard that the defendant had been convicted on a previous occasion for the offense of manslaughter in Washington County, Alabama, and given a sentence of ten years, an appeal of which is presently pending in the Court of Appeals of Alabama, and the Court declined to permit the jurors to be examined on voir dire separate and apart and the defendant notes an exception. I am going to exclude, on my own motion, the following named jurors, to-wit: (listing two from the Repton area) who since voir dire examination by the Court have stated that they had a fixed opinion as to the guilt or innocence of the defendant or felt that their knowledge of the case might bias their opinion.'

The gravamen of the contention would seem to lie in the geographical fact that Repton lies on the westerly side of Conecuh County, Conecuh being bounded on the west only by Monroe.

Without reviewing the scope accorded by § 52, supra, which was inserted by the 1923 Code Commissioner, we cannot see any disadvantage to the defendant by putting the enquiry to the venire as a whole. All that the Constitution requires of a jury is that it be impartial, duodecimal and unanimous.

The N.Y. Court of Appeals, per Gray, J., expressed the American background of trial by jury (in part):

'* * * The institution of trial by jury is entitled to all the reverence which a custom deserves that is so historically interwoven with the growth and development of the rights of the English people. But it should be no superstitious reverence, warping and prejudicing our inquiry into the true significance and extent of the custom which has become a constitutional right. The system of trial by jury had its origin, through many sources, in the early institutions of the English people, and the provision in Magna Charta that no man should be deprived of his life, liberty, or property,

Page 170

[45 Ala.App. 394] or be condemned, 'but by lawful judgment of his peers,' has been generally credited with establishing, or defining, the right of trial by jury. The correctness of this belief is somewhat open to doubt, inasmuch as the provision more probably referred to the existing custom of a trial by peers. 3 Reeve, Eng.Law, 247; Forsyth, Jury Tr. 108. In Reeves' work it is said that trial by jury was not then known. But, however that may be, it did guaranty a procedure in trials, from which, it is generally agreed, eventually sprang the modern jury system as practiced under the common law of England. That the jury should be composed of 12 persons was due to the fact that 12 was a favorite number in the earliest times for various kinds of legal ceremonies or functions, and, for its great antiquity, was held in reverence. 1 Reeve, Eng.Law, 84 et seq. It is not without interest to observe that in the earlier times the jurors were witnesses, who pronounced upon their knowledge of the facts, and it was not until the times of Edward VI. and Queen Mary that the old procedure was softened by the selection of jurors dispassionate and indifferent between the parties, before whom witnesses were called to inform their consciences. 1 Reeve, Eng.Law, 271. That special juries were known to the common law is shown in Forsyth's work on Trial by Jury (page 172), and an instance is cited, in 1450 (29 Hen. VI.), of 'a petition for a special jury; that is, jurors 'who dwell within the shire, and have lands and tenements to the yearly value of xx ,' to try a plea which it was supposed might be pleaded in abatement on a bill of appeal of murder.' In Rex v. Edmonds, 4 Barn. & Ald. 471, which was a criminal case tried before a special jury, it was observed of special juries by Chief Justice Abbott that it had not 'hitherto been ascertained at what time the practice of appointing special juries for trials at nisi prius first began,' and that it was 'introduced for the better administration of justice, and for securing the nomination of jurors duly qualified in all respects for their important office. It certainly prevailed long before St. 3 Geo. II. c. 25, and was recognized and declared by that statute, which refers to the former practice.' See, also, Thomp. & M.Jur. § 12. Under the provisions of St. 6 Geo. IV. c. 50, the special jurors' list was made from the ordinary jurors' book, and from among those described in that book 'as esquires, or as persons of higher degree, or as bankers or merchants.' There were statutes which, in the reigns of Henry VIII. and of Philip and Mary, authorized the impaneling of bystanders, if a sufficient number of jurors returned by the sheriff did not appear, and such a practice was very early authorized in the United States courts. See Rev.St.U.S. §§ 804, 805.

'From this brief inquiry, we would seem to be justified in saying that special, as well as struck, juries were resorted to at common law, and that the mode of selection of jurors was a matter for legislation.

'It is to be observed that our constitution does not secure to the defendant any particular mode of jury trial, nor any particular method of jury selection. It secures, simply, the right to a trial by a common-law jury of 12 men. Wynehamer v. People, 13 N.Y. 378, 458. Judge Cooley, in his work on Constitutional Law (3d Ed. p. 321), says: 'By 'jury' in the constitution is meant a common-law jury. This is a tribunal of twelve persons, impartially selected for the purposes of the trial, in accordance with rules of law previously established.' In Stokes v. People, 53 N.Y. 164, 173, it was held that the mode of procuring an impartial jury 'is regulated by law, either common or statutory, principally the latter; and it is within the power of the legislature to make, from time to time, such changes in the law as it may deem expedient, taking care to preserve the right of trial by an impartial jury.' It was further said that 'the end sought by the common law was to secure a panel that would impartially hear the evidence, and render a verdict thereon uninfluenced by any extraneous considerations whatever.' In Walter v. People, 32 N.Y. 147, it was held that the

Page 171

[45 Ala.App. 395] constitutional provision carried no limitation of, or restriction upon, the legislative power, except as to the right guarantied, viz. a jury trial in all cases in which it had been used before the adoption of the constitution. In the same case it was considered that, even if the right to peremptory challenges were a right given by the common law, it could, nevertheless, be restrained, or withheld altogether, at the legislative will. In People v. Petrea, 92 N.Y. (128), at page 143, it was held competent for the legislature to regulate the mode of selecting and procuring grand jurors (citing Stokes' Case),--an institution equally regarded as one of the securities of civil liberty.

'The system of trial by jury, as it grew up at common law, had its root in the endeavor to secure to a defendant a trial of his cause by a fairly-selected body of his equals, rather than by his rulers, or by magistrates, or by persons designated by them, and the usage finally obtained of taking 12 jurymen from the vicinage to judge upon the facts developed by the evidence of witnesses. The right was conceded to the citizen of having the judgment of an impartial committee, or body, of his fellow citizens, upon charges involving his life, or his...

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