Cash v. State, 7 Div. 790

• Decision Date: 16 August 1966
• Docket Number: 7 Div. 790
• Citation: 191 So.2d 230,43 Ala.App. 390
• Parties: Irby C. CASH v. STATE.
• Court: Alabama Court of Appeals

Page 230

191 So.2d 230

43 Ala.App. 390

Irby C. CASH v. STATE.

7 Div. 790.

Court of Appeals of Alabama.

Aug. 16, 1966.

Rehearing Denied Sept. 19, 1966.

Loma B. Beaty, Fort Payne, for appellant.

Richmond M. Flowers, Atty. Gen., and John C. Tyson, III, Asst. Atty. Gen., for the State.

JOHNSON, Judge.

Appellant was indicted by the July term of the DeKalb County Grand July in 1963 and charged with unlawfully and intentionally, but without malice, killing Reuben Traffanstedt by running an automobile upon, over or against him contrary to law and against the peace and dignity of the State of Alabama. Appellant was tried in the DeKalb County Circuit Court on February 25, 1964, and convicted of the offense of Manslaughter in the Second Degree and sentenced to six months hard labor as punishment therefor. Hence, this appeal.

Norman Clanton, son-in-law of the deceased, testified that on October 9, 1962, he saw a flash about 200 yards away. He drove toward it and arrived at the scene of the accident three or four minutes later. He said that he found that deceased had no pulse or heartbeat and, in his opinion, was dead and that he then went to the other automobile and found appellant pinned in the wreckage and that he used a jack-handle to prise the seat loose to pull him from his automobile. Dr. James A. Walker, a qualified physician from Fort Payne, testified that deceased had died of multiple head injuries.

State Trooper Bill Stone testified that on October 9, 1962, he investigated an automobile accident in which Reuben Traffenstedt was killed. He identified several photographs and stated that they accurately portrayed the positions of the two automobiles as he found them immediately following the accident. Mr. Stone stated that he determined the point of impact and that appellant's automobile was over in the lefthand lane going South at the time of impact; that the right front wheel was two and one-half feet from the center line; that the rear wheels were three feet from the center line; that there were no skid marks; and that the road was straight. On cross-examination, Mr. Stone testified that, by making a radio call to the Gadsden office of the highway patrol, he had refreshed his recollection of the distances by checking the evidence he formerly ascertained in his original investigation.

Appellant testified that he saw deceased's automobile going from one side of the road to the other; that when the two automobiles were close together deceased pulled over on appellant's side of the road after which appellant pulled over on deceased's side and slowed down and then deceased pulled back over in front of appellant's car. Appellant stated that he had almost stopped when the two automobiles collided. He denied that he had been drinking on the day of the accident.

Appellant contends in his motion for a new trial that there was a separation of the jury during the noon recess. During the hearing on the motion for a new trial, it was established that due to a failure to properly instruct the deputies, jurors in two automobiles were carried to a restaurant and then notified that they were to go to another restaurant on the other side of town and eat lunch with the sheriff and the jurors who were with him.

All twelve jurors testified that they did not talk to anyone about the trial outside the presence of the judge, the other jurors, the appellant and his attorney. Such evidence affirmatively establishes that the separated juror or jurors were subject to no influences or contracts that might have influenced their verdict. Trimble v. State, 40 Ala.App. 354, 114 So.2d 164, cert. den. 269 Ala. 700, 114 So.2d 168; Golden v. State, 39 Ala.App. 361, 103 So.2d 52.

After the jurors had eaten lunch and before the continuance of the trial, some of the jurors sat down in the jury box and the others were in the jury room. Mr. Burl Hagler, who was in the jury box, testified that Patrolman Stone walked over and asked him if he was still working at the steam plant at Widow's Creek and that the replied that he was. Mr. Hagler stated that Stone did not discuss the case. Only four jurors other than Hagler remembered being in the jury box at the time of this conversation. One juror said that he didn't hear what was said and that Stone did not talk to to him. One said that Stone didn't say anything to him. One was never questioned as to the conversation and the remaining juror testified that he recalled Mr. Stone's asking Mr. Hagler 'something about working' but that Stone didn't say anything to any of the jurors about the case.

We can see no possible injury to the appellant because of the circumstances outlined above. Hawkins v. State, 267 Ala. 518, 103 So.2d 158.

It clearly appears from the testimony of the jurors and Patrolman Stone that appellant's case was not discussed in the conversation. Indulging the presumptions in favor of the court's decision, we must hold that there was no error in overruling the motion for a new trial on this ground. Mullins v. State, 24 Ala.App. 78, 130 So. 527, cert. den. 222 Ala. 9, 130 So. 530; Adams v. State, 32 Ala.App. 367, 26 So.2d 216; Mead v. State, 35 Ala.App. 70, 43 So.2d 839.

The State introduced into evidence several photographs which clearly show the position and relation of the automobile driven by appellant to the automobile driven by deceased. Mr. Norman Clanton, the first person to arrive at the scene after the accident, testified that the photographs marked State's Exhibits Nos. 2, 4 and 6 were a true and accurate representation of the two cars as he saw them on that occasion and that he was there when the photographs were taken.

On voir dire examination, Mr. Clanton stated that the photograph marked Exhibit No. 6 was not what he saw when he went up there. This photograph showed several persons standing around the wrecked automobile and showed several automobiles parked across the road from the wrecked automobiles. Mr. Clanton testified that when he got there, no one else except...