Ellington v. State

• Decision Date: 26 June 1973
• Docket Number: 7 Div. 172
• Citation: 51 Ala.App. 12,282 So.2d 360
• Parties: Franklin ELLINGTON v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 360

282 So.2d 360

51 Ala.App. 12

Franklin ELLINGTON v. STATE.

7 Div. 172.

Court of Criminal Appeals of Alabama.

June 26, 1973.

Rehearing Denied July 12, 1973.

J. M. Sides, Anniston, for appellant.

William J. Baxley, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State.

JOSEPH J. MULLINS, Circuit Judge.

On January 5, 1972, an indictment was returned by the Grand Jury of Calhoun County against the appellant charging murder in the first degree for killing one Edgar L. Vinson. The appellant was convicted of murder in the second degree, and sentenced to ten years in the penitentiary. There is sufficient evidence in the record to sustain the jury verdict.

On January 14, 1972, the appellant being present in court and being represented by counsel employed by him, was in all respects lawfully arraigned and entered a plea of not guilty. The cause was set for trial on February 22, 1972, at 9:00 A.M. The venire from which the jury for the trial of this case was to be selected consisted of eighty regular, petit jurors, and twenty specially drawn. The case was called for trial on the morning of February 22, 1972. The State and the defendant both announced ready. The venire was sworn to make true answers to all questions propounded to them touching their qualifications as jurors. The clerk of the court called the name of each venireman and as each name was called the venireman came up to the rail in the courtroom and identified himself by stating his, or her, name, correct address, place of employment, or occupation. The lady jurors were directed to also state the name of their husband and his place of employment and occupation. When the roll call of the venire was completed it was discovered that one member of the venire was absent. The judge then declared a ten minute recess and instructed the members of the venire who were present to remain in the hearing of the bailiff, not to discuss this case among themselves nor allow anyone to discuss it in their hearing or presence. After a short recess the venire was excused for lunch and instructed again not to discuss the case among themselves or allow anyone else to talk to them about it and to be back in court at 1:30 P.M. At 1:30 P.M. the judge called Mrs. Frances Estes, a member of the venire, up before him and stated:

'We called up for trial this morning the case of State of Alabama vs. Franklin Ellington, and both sides announced ready, and thought you were in the courtroom and present, but you were missing. I will now administer the juror's oath to you.'

Whereupon the court administered the oath to Mrs. Frances Estes. The appellant then moved the court for a mistrial on the ground that Mrs. Estes, one of the jury panel, had not been present during the proceedings. This motion was denied by the court; whereupon Mrs. Estes was called up to the rail and identified herself in the same manner in which the other veniremen had identified themselves. The court then asked, 'Does the State or the defendant have any further questions of this jury venire at this time?' The State's attorney answered, 'No, Your Honor.' The defendant's attorney answered, 'No, Your Honor.' The court then proceeded to qualify the entire venire for the trial of this case allowing both the State and the defendant's attorneys to fully question the members of the venire. No member was challenged by the State or the defendant and no objection was made to the striking of the jury from the list of the venire furnished by the clerk. Upon the completion of the striking of the jury the twelve jurors selected for the trial of the case were duly sworn and impaneled.

The appellant argues in his brief that the action of the trial judge in overruling his motion for a mistrial is error, for which this cause should be reversed. His contention that the trial court erred in not drawing another venireman to replace Mrs. Estes, or declaring a mistrial, is contrary to the provisions of Tit. 30, § 65, Code of Alabama 1940, recompiled 1958, which reads as follows:

'If in any capital case the number of competent jurors shall be less than thirty, before requiring any of them to be stricken off, the court must draw as prescribed in this chapter, and have summoned, enough qualified jurors who are within or live within five miles of the courthouse, or who live within the corporate limits of a city of ten thousand or more inhabitants, in which the court is held, to increase the number to at least thirty, and have their names placed on the list with other competent jurors and shall then require the solicitor and the defendant or defendants to strike from the list as provided in this article, the number of jurors that each may be entitled to strike off, until only twelve remain thereon, and these twelve shall be sworn and empaneled as the jury for the trial of the defendant or defendants.'

The appellate courts of the State of Alabama have held that it would be error for the trial court to draw additional names to place on the list of jurors to strike from until the number of available jurors was less than thirty. Bridges v. State, 225 Ala. 81, 142 So. 56; Jones v. State, 260 Ala. 341, 70 So.2d 629; Bowman v. State, 44 Ala.App. 331, 208 So.2d 241; Fleming v. State, 20 Ala.App. 481, 104 So. 137, cert. denied 213 Ala. 78, 104 So. 139; Lewis v. State, 22 Ala.App. 108, 113 So. 88; Riley v. State, 21 Ala.App. 655, 111 So. 649.

The record in this case shows that the list of jurors to be summoned consisted of the eighty jurors drawn regularly for that week and twenty specially drawn for the trial of capital cases. Therefore, under the record in this case the trial court's ruling on the motion was proper.

It is also argued by the appellant, in effect, that once the case is called for trial and both sides announce ready, the entire venire should be sworn in at the same time and kept together. This contention cannot be correct when taken into consideration with the entire procedure as set out by the Code, supra, for securing jurors for the trial of criminal cases. The procedure provides that in event the number of jurors from which the State and the defendant are to strike is reduced to less than thirty, then the judge should draw from the jury box additional names for prospective jurors. It would be impossible to swear in these additional veniremen at the same time the original veniremen were sworn in, and it would be impossible to keep the additional veniremen with the original veniremen because the additional ones were not known. In the case of Bell v. State, 140 Ala. 57, 37 So. 281, it is said that the rule of law prohibiting the court's allowing a jury in a murder case to separate during the trial of the case does not apply to veniremen before being sworn as jurors in the case they are to try. In fact Justice Tyson, in Bell, supra, quotes from State v. Burns, 33 Mo. 483, 'They were not jurors, and not, therefore, in the custody of any officer of the court.' In Bell, supra, it is also said:

'Coke, Foster, and Blackstone state the rule to be 'that after the Jury are sworn and charged with the prisoner, and after evidence has been given, the jury cannot be discharged or separated.' Martin's Case, (2 Leigh (Va.) 745) supra.'

Again, quoting from the Bell case:

'This question is Res integra in this state. It has, however, frequently arisen in other jurisdictions, notably in the famous trial of Burr. In that case, it being impractical to empanel a jury on the first day, four were sworn, and, the question being raised, whether they should be confined, the decision of Chief Justice Marshall was, 'that there was no necessity for delivering the jurymen, who had been or should be sworn, into the custody of the marshal, until the whole number had been empaneled and sworn.'' Actually the trial court could not entertain a motion for a mistrial at the time the appellant moved for it due to the fact that no trial had begun. A trial is deemed to begin when a jury of twelve is sworn, and charged with the prisoner, and after evidence has been given. Bell, supra; Epps v. State, 28 Ala.App. 105, 179 So. 395; Murray v. State, 210 Ala. 603, 98 So. 871.

For a collection of the authorities on the question of separation of jurors see Annotations contained in 34 A.L.R. 1115, 79 A.L.R. 821, 21 A.L.R.2d 1088.

We hold that in a capital case it is not necessary for the entire venire to be sworn in at the same time and to be kept together.

The appellant's next argument in his brief is that the lower court erred in allowing the witnesses, Cecil Ledbetter and Charles Wayne Chandler, to state their opinions that a .38 caliber pistol, State's Exhibit 6, had not been recently fired.

Cecil Ledbetter testified that he had been with the Anniston Police Department for about three years; that he owned a .357 Colt Python revolver; that he wears it and uses it in his business; that he often fires it; that he cleans it; that he smells gun powder; that he knows what gun powder smells like; that he is familiar with the type of gun that he found in the bedroom where deceased's body was that night; that it was a .38 revolver; that he looked at the barrel of the gun the night he found it; that he saw dust and cobwebs in the barrel; that he saw no bullets in the cylinder; and that he examined the gun on that occasion to determine if it was in good working condition.

Whereupon the following question was propounded to the witness by the State:

'Q. Based on your experience as a police officer, and having, yourself, owned a gun, a revolver-type gun, and having shot a gun of this nature, do you have an opinion as to whether or not that gun had been fired that night?

'MR. SIDES: If the Court please, we object, this invades the province of the jury, the proper predicate has not been laid, and this witness has not qualified as an expert.

'THE COURT: I overrule your objection.

'MR. SIDES: We except, Your Honor.

'Q. (By Mr. Robinson) You can answer.

'A. Would...