Dawson v. State
Decision Date | 28 June 1966 |
Docket Number | 8 Div. 37 |
Citation | 43 Ala.App. 265,188 So.2d 600 |
Parties | Pride DAWSON v. STATE. |
Court | Alabama Court of Appeals |
Richmond M. Flowers, Atty. Gen., and John C. Tyson, III, Asst. Atty. Gen., for the State.
This appeal was submitted January 27, 1966.
Dawson has appealed from a judgment of conviction after verdict on an indictment of assault with intent to murder. The court assessed his punishment at two years in the penitentiary.
The defense offered only one witness, Grace Dawson, the defendant's wife. She was not an eyewitness to the assault made by her husband.
The State made out a prima facie case which, in the record, is undisputed.
Robert Dawson, a distant kinsman of the defendant, testified that one night in 1963 he was driving southerly on the Leighton- Russellville road when he encountered the defendant, Pride Dawson, who was in a car parked askew the road.
Robert swung around the defendant's car. Whereupon Pride followed and rammed Robert's car so as to prevent him from making a right turn into his driveway. Robert went about a half a mile farther with Pride pursuing.
Robert drove into the driveway of an aunt. Pride went about half way in and jumped out shooting at Robert's car. In all he shot three times. One blast hit the Robert took to the woods. The defendant was arrested that night.
left side of the car and another shattered the windshield.
The defense did not (1) move to exclude the State's evidence; (2) request in writing the affirmative charge; nor (3) move for a new trial.
Hence, the trial judge was not called on to rule as a matter of law on whether there was insufficient evidence to go to the jury or to support the verdict. Nor can we review the question in vacuo.
In brief, counsel for appellant (who was not trial counsel) first contends that the court below erred in overruling (1) a motion for continuance, (2) challenges for cause, and (3) a motion for mistrial.
The basis to continue was that Dawson was a witness in a case tried the same week in which 'very prejudicial testimony came out, and due to this testimony some very prejudicial statements were made in the Tri-Cities Daily, the paper has a wide circulation in Colbert County and we don't think he can have a fair trial.'
The ruling came thus:
From page 15 of the record, we extract:
'MR. CARMICHAEL: The defendant, Pride Dawson, would like to know whether any member of the jury venire heard any testimony on the trial of Marvin D. Keeton, if so, please stand?
'Jurors Raymond L. Draper and John Edward Ligda stood.
'MR. CARMICHAEL: We would like to know for information purposes how many members of the venire read in the Tri-Cities Daily the story or the testimony that was written by the Tri-Cities Daily in regard to the Keeton trial, on (sic) other words, gentlemen, if you even read about the trial?
'Jurors Gilbert Mayer, Grant Azbell, Raymond L. Draper, Leslie L. Smith, Jr., John Edward Ligda, Clause S. Pounders, Woodrow W. Grissom, Emmett Hayes, Kenneth D. Bruton, Chester T. Thatcher, Bobby G. Yarbrough and Roy T. Collins, stood.
'No one answered.'
We find on record page 17:
and we don't think he could get a fair and impartial trial by members of this venire, and we challenge them for cause.
'Defendant reserves an exception.'
The trial judge's statement 'the Court heard the testimony in the case of the State of Alabama vs. Marvin D. Keeton, and it in no way involved the defendant, Pride Dawson' makes a prima facie burden rest on appellant. The trial judge's statement was the equivalent of taking judicial notice as an administrative device.
The court reporter's rendition of the motion to continue and the motion for mistrial probably suffice for the relief sought. Code 1940, T. 7, § 214, provides:
However, the ground claimed was too conjectual to afford us any basis to say what was or was not in evidence in Keeton's trial. Hence, the trial judge's statement, whether strictly evidence or not, is uncontradicted.
There was no error in this ruling.
The setting of the second claim of error came from the failure of the court to honor a belated challenge to the polls for cause (to the favor) against venireman Robert G. Cleveland because of a possible clientattorney relationship with Hon. Murray Beasley, County Solicitor.
Dawson contends that Cleveland should have stood when the following occurred on qualifying the panel for the strike list:
'No one answered.'
Next we find:
'(The Clerk called the names of twelve jurors and they are seated in the jury box.)
'(Jury leaves Courtroom and goes into Jury room adjacent to Courtroom.)
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