Chaney v. State
| Decision Date | 15 January 1952 |
| Docket Number | 6 Div. 253 |
| Citation | 36 Ala.App. 374,56 So.2d 385 |
| Parties | CHANEY v. STATE. |
| Court | Alabama Court of Appeals |
K. C. Edwards, Birmingham, for appellant.
Si. Garrett, Atty. Gen., and Thos. M. Galloway, Asst. Atty. Gen., for the State.
This appellant was indicted for murder in the first degree. His jury trial resulted in a verdict of guilty of murder in the second degree. Judgment was entered accordingly.
Since we are clear to the conclusion that this cause must be reversed because of irregularities in the trial below, we will depict only so much of the voluminous evidence submitted as will afford a basis for discussion of some of the points argued.
The appellant and deceased lived as neighbors in Birmingham. The killing resulted from a row between the deceased and Bobby Chaney, a daughter of appellant.
The State's evidence in general was directed toward showing that the deceased and Bobby Chaney were quarrelling in the street near the houses of appellant and deceased. The appellant's wife came out, and seeing and hearing the difficulty called to appellant, her husband, to bring his gun. The deceased, by the time the appellant arrived, had walked up on his porch and was standing there when appellant shot him with a shotgun. After firing one time the appellant walked closer to deceased and shot him a second time, the deceased having been knocked down by the first blast.
The evidence presented by the defense was to the effect that appellant came to the scene in response to his wife's and his daughter's calls for help. According to appellant the deceased and his daughter were fighting as he approached
According to appellant, the deceased, with his hand in his pocket, continued to advance on him, and he continued to retreat, telling deceased not to come up on him. After retreating some fifteen feet the deceased 'made a break' on him and appellant fired his shotgun.
It appears from the record that after the jury had been instructed and had retired to the jury room they requested additional instructions. The jury were returned to the courtroom and the court gave them some additional instructions. Counsel for appellant excepted to certain portions of these additional instructions. The court then stated that if he had left anything out he would be glad to have the jury come back, and told the bailiff to return the jury.
However the record shows that, instead of having the jury returned to the courtroom, the judge, court reporter, solicitor, and defendant's counsel went into the jury room where the court instructed the jury further.
The following excerpt from a scholarly opinion by Simpson, J., in Lee v. State, 31 Ala.App. 91, 13 So.2d 583, 586, certiorari denied 244 Ala. 401, 13 So.2d 590 will we think, illustrate the applicable doctrine which compels a reversal of this case because of the above mentioned irregularities in the trial below:
'Erudite discussion of the rule is found in the case of Noell v. Com. 135 Va. 600, 115 S.E. 679, 681, 30 A.L.R. 1345, 1349, 1350. We trust...
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... ... In Crump v. State, 28 Ala.App. 103, 179 So. 392, the error was in excusing veniremen prior to the date set for trial. In Neal v. State, 257 Ala. 496, 59 So.2d 797, and Chaney v. State, 36 Ala.App. 374, 56 [51 Ala.App. 219] ... So.2d 385, the trial court was reversed for giving additional instructions to the jury in the jury room in the absence of defendant, even though defendant's counsel and others were present. In Lee v. State, 31 Ala.App. 91, 13 So.2d 583, the ... ...
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...In two recent cases, one by the Supreme Court, and one by this court, See Neal v. State, 257 Ala. 496, 59 So.2d 797; Chaney v. State, 36 Ala.App. 374, 56 So.2d 385, it was held to be reversible error for the judge, even though accompanied by defense counsel, solicitor, and court reporter, t......
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...91, 13 So.2d 583, cert. den. 244 Ala. 401, 13 So.2d 590 (1943); Neal v. State, 257 Ala. 496, 59 So.2d 797 (1952); and Chaney v. State, 36 Ala.App. 374, 56 So.2d 385 (1952). In Lee, supra, our Supreme Court in denying certiorari, held that a defendant in a capital case could not waive the re......