Brown v. State

• Decision Date: 26 January 1971
• Docket Number: 6 Div. 128
• Citation: 264 So.2d 529,48 Ala.App. 304
• Parties: Samuel BROWN, alias v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 529

264 So.2d 529

48 Ala.App. 304

Samuel BROWN, alias v. STATE.

6 Div. 128.

Court of Criminal Appeals of Alabama.

Jan. 26, 1971.

Rehearing Denied March 2, 1971.

Michael J. Romeo, Billy Church, Birmingham, for appellant.

MacDonald Gallion, Atty. Gen., and Joseph Victor Price, Jr., Asst. Atty. Gen., for the State.

CATES, Judge.

First degree murder: sentence, death by electrocution.

I

Brown, Irving Crawford and Gloria Jean Cannon left her home early in the morning May 4, 1969, in Crawford's car and drove to the cargo yard of Mercury Freight Lines. There Brown and Crawford stole a carton purporting to contain a power lawnmower. An employee of the freight line, Buster Williams, tried to stop them but Crawford chased him off with a pistol.

While Williams went to alert the watchman, Azell Harris, Brown and Crawford put the box in the trunk of the car. Harris chased them on foot. Crawford driving with his head down to avoid Harris's shots hit a post, then a railroad track.

There he and Brown got out shooting at Harris who in the meantime had caught up with the stalled car. Harris was shot in the head and died from this wound.

II

The jury was qualified in accordance with Witherspoon v. Ill., 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776. We have set out the trial judge's interrogation in the Appendix hereto. See also Boulden v. Holman, 394 U.S. 478, 89 S.Ct. 1138, 22 L.Ed.2d 433; Jackson v. State, 285 Ala. 564, 234 So.2d 579; Seibold v. State, 287 Ala. 549, 253 So.2d 302, (December 17, 1970); and Howard v. State, 287 Ala. 435, 252 So.2d 304, (December 17, 1970). We find no error.

III

In undertaking the Witherspoon examination, the prosecuting counsel used the expression 'regardless of how mauseating the evidence might be.' Objection to this term was overruled. See Appendix.

First, the use of the subjunctive 'might' left the sickening quality of the evidence a matter to be determined. Second, any homicide can be viewed as nauseating. Third, the statement was not made in argument. We find no error.

IV

After the evidence was closed, defense counsel objected to the deputy district attorney's argument. The record shows:

'(Thereupon, Mr. McDonald continued addressing the jury, in opening argument, on behalf of the State, during which the following proceedings were had and done:)

'MR. CHURCH: May it please the Court, we are going to object to the reference to other crimes that are not before this Court.

'There is only one crime in this indictment, and we ask that Mr. McDonald restrict himself to the crime in the indictment.

'THE COURT: What was the statement? I was working on my notes. I'm sorry.

'MR. McDONALD: I said 'A burglary, or robbery,' and I said something to the effect that he wouldn't need dynamite in a robbery, but, in a burglary, he could, to blow a safe, or get some door open, or something of that nature.

'I don't know exactly.

'THE COURT: I overrule the objection.

'MR. CHURCH: May it please the Court. I am going to object to the statements made by Mr. McDonald, wherein he says that on this day you can save my daughter's life, my husband's life, or my wife's life, as being outside the realm of issues in this case, and intended to inflame the minds and passions of the jury.

'THE COURT: Overrule.

'MR. CHURCH: We except.'

The argument as to the dynamite was within the legitimate inferences of the evidence.

As to the second quotation, this too would seem in bounds where, as here, there was an exchange of fusilades on a public street. Furthermore, we also could uphold the lower court's ruling under Supreme Court Rule 45.

V

We do not consider the remarks above quoted as to the possible use of the dynamite to break and enter as referring to another crime separate and distinct from the one which led to Azell Harris's death.

The carrying of the dynamite on the larcenous expedition could lead to the inference that it was preparatory to being used to break and enter if the opportunity arose or the exigencies of the situation demanded.

VI

The State did not undertake to prove the market value of the lawnmower. The court below charged as to grand larceny's being a felony. This was in the course of charging (see Code 1940, T. 14, § 314) that homicide committed in perpetrating robbery was first degree murder.

Our felony murder provision does not embrace larceny without violence or threats thereof. Hence, defining larceny simpliciter was irrelevant other than to explain the deceased's right to protect Mercury Freight Line's property and cargo.

Defense counsel took no exception to this instruction before the jury retired. Hence, no error arose.

VII

Along with his motion for new trial, defendant filed an affidavit which states that in closing argument the Deputy District Attorney said:

"Now if you (meaning the jury) make a mistake here, God in His wisdom will see that it is corrected later on."

However, the record is barren of any showing that the remarks were called to the court's attention before the jury retired. Without the trial judge having the occasion to rule on the propriety of invoking Divine Intercession, we are not called on to determine the question.

This argument is not within the scope of the Automatic Appeal Act of June 24, 1943. The plain error doctrine of § 10 of that Act refers only to 'testimony.'

VIII

The jury had the case submitted to it on Decemnber 10, 1969, and found Brown guilty of first degree murder and fixed his punishment at death. On December 12, 1969, the trial judge, after allocutus pronounced judgment of guilt and sentence. The date of execution was set for February 26, 1970.

Upon notice of appeal being given, the court below suspended execution of the sentence pending decision of this Court.

Appeal under the Act of June 24, 1943, supra, is mandatory. Certiorari from this Court is considered by the Supreme Court 'as a matter of right.' Supreme Court Rule 39, as amended December 14, 1970.

Code 1940, T. 15, § 325, as amended, provides (in part):

'The only legal punishments, besides removal from office and disqualification to hold office, are fines, hard labor for the county, imprisonment in the county jail, imprisonment in the penitentiary, which includes hard labor for the state, and death by electrocution. * * *.'

Code 1940, T. 14, § 318, provides (in part):

'Any person who is guilty of murder in the first degree, shall, on conviction, suffer death, or imprisonment in the penitentiary for life, at the discretion of the jury; * * *.'

However, by closing Kilby Prison, the executive arm of the State has had taken from it the means of lawfully killing Brown by electrocuting him. The death chair which can only be energized at Kilby no longer has a home there.

Execution of a death sentence is detailed in Code 1940, T. 15, §§ 343--356, being Article 6 of Chapter 17 of that Title. Particularly, from § 348, ¹ Kilby Prison alone is the legally specified place of execution.

Under Act No. 678, September 1, 1965, as amended by Act No. 103, April 11, 1967, the Legislature has taken Kilby Prison from the Board of Corrections and transferred it to the Alabama Correction Institution Finance Authority, § 22, Act No. 678, supra. Under § 24 thereof the Board of Corrections was authorized to lease other facilities from the Authority on a year to year basis.

The land and premises of Kilby Prison were deeded pursuant to said Act No. 678 to the Authority June 23, 1967. The electric chair was dismantled and the last of the prison inmates were moved to other parts of the penitentiary system, the last leaving January 21, 1970.

Kilby Prison was imploded with dynamite and is now completely razed.

On July 21, 1970, the Attorney General advised the Governor that the execution of a 'death sentence may take place only inside the walls of Kilby Prison in Montgomery. * * * (I)n the absence of statutory authority * * * execution may not take place at the Holman Prison in Atmore.' Op.A.G.Quarterly Rep. July--Sept., 1970, Vol. 140, p. 11.

Blackstone, citing Coke, Finch and Hale, points out that execution of a death sentence is justifiable homicide only if carried out as the law requires it. The mode must be that prescribed:

'* * * If an officer beheads one who is adjudged to be hanged, or vice versa, it is murder: (i) for he is merely ministerial, and therefore only justified when he acts under the authority and compulsion of the law: but if a sheriff changes one kind of death for another, he then acts by his own authority, which extends not to the commission of homicide; and besides, this license might occasion a very gross abuse of his power. The King, indeed, may remit part of a sentence; as in the case of treason, all but the beheading; but this is no change, no introduction of a new punishment; and in the case of felony, where the judgment is to be hanged, the King (it hath been said) cannot legally order even a peer to be beheaded. * * *.'

Thus, in our jurisprudence in Ex parte Pearson, 59 Ala. 654, it was held that a sentence to hard labor could not be executed by confinement in the county jail. Moreover, there the Supreme Court reversed a lower court judgment which remanded the prisoner to Await the County Commissioners' arranging his being hired out. The Supreme Court relieved the petitioner 'from further imprisonment.'

In White v. State, 134 Ala. 197, 32 So. 320, the principle applied in Pearson, supra, was ascribed to (1) unreasonably long detention by the sheriff and (2) the neglect of the county commissioners in providing a place for hard labor confinement. In White, supra, the prisoner was ordered to be immediately delivered to the penitentiary authorities rather than to be kept in the county jail pending an appeal without suspension of sentence.

In Kirby v. State, 62 Ala. 51, Brickell, C.J., in explicating the rationale of Ex parte Parson, supra, remarked, 'The law would not sanction * * * A sentence dependent on matter of fact to be ascertained subsequently by an...