Felton v. State, 8 Div. 65
| Citation | 252 So.2d 108,47 Ala.App. 182 |
| Decision Date | 02 November 1971 |
| Docket Number | 8 Div. 65 |
| Parties | Marvin Eugene FELTON v. STATE. |
| Court | Alabama Court of Criminal Appeals |
John C. Martin, William N. Pitts, Tuscumbia, for appellant.
MacDonald Gallion, Atty. Gen., and W. Mark Anderson, III, Special Asst. Atty. Gen., for the State.
In the Colbert County Circuit Court appellant was convicted of murder in the second degree and sentenced to twenty-five years imprisonment. He was indicted in more than one case. The charge in this case being murder in the first degree. Being indigent, he was represented at the trial by two attorneys appointed by the court and by two different ones on appeal.
The minute entry shows that on August 16, 1968, in open court in the presence of the court, the district attorney, the attorney for the defendant, and the defendant, the jury brought in the following verdict:
'We, the jury, find the defendant guilty of murder in the second degree, as charged in the indictment, and fix his punishment at 25 years imprisonment in the penitentiary.'
The record shows the following:
'(The defendant stood.)
'(The jury was polled.)
Appellant argues for error because the record does not show whether any juror, when polled by the court on request of attorney for appellant, answered in the negative that the verdict reached and received by the court was not his verdict, agreed to by him along with the rest of the jurors serving on the case.
The Statute relied upon reads as follows:
'When a verdict is rendered in either a civil or criminal case, and before it is recorded, the jury may be polled, on the requirement of either party; in which case they must be asked severally if it is their verdict; and if any answer in the negative, the jury must be sent out for further deliberation.'
It is not necessary for the juror to answer by word of mouth when being polled under Tit. 30, § 101, Code of Alabama, 1940. The answer may be made as intelligibly and affirmatively by a movement of the head as by words. Brown v. State, 141 Ala. 80, 37 So. 408.
The record affirmatively shows when the jury returned the verdict in open court where there were present the trial judge; the district attorney; the defendant and his attorney, Mr. Boynton, at whose request the jury had been polled; the sheriff; and, of course, the court reporter; no motion or statement of any kind appears to have been made by the attorney for the appellant, and he was immediately sentenced by the court and taken into custody by the sheriff.
No objections to these proceedings were made by the appellant. Matters not objected to in the trial court cannot be considered for the first time on appeal, since a review on appeal is limited to those matters on which rulings are invoked at nisi prius. Smith v. State, 40 Ala.App. 600, 119 So.2d 202; Thompson v. State, 44 Ala.App. 414, 211 So.2d 505.
Even though a defendant is deprived of his statutory right under § 101, supra, this does not render the verdict void but is an irregularity which will support a reversal only. Allen v. State, 260 Ala. 324, 70 So.2d 644.
The argument on this point in effect asks this court to presume error on the part of the court with injury to the appellant, which we cannot do. To the contrary, error is not presumed on review (even in criminal cases) and the appellant has the burden of establishing reversible error. Many cases directed to this point are collected in Alabama Digest, Criminal Law k1141(1) and 1141(2). We have been cited no case in point in support of the contention of the appellant in this matter.
The minute entry shows that on May 24, 1968, the appellant in open court with his attorneys was arraigned and the case was set for trial on June 4, 1968. A special venire was drawn but the case was continued several times at the request of appellant before trial.
On June 12, 1968, appellant filed motion to quash the venire and the indictment because of the systematic exclusion of women and Negroes from the jury roll of Colbert County, and a motion to examine the jury box and roll. The court, pending further proceedings, granted and allowed appellant to examine the jury roll and jury box and the case was continued on several occasions to allow him ample time.
However, on July 17, 1968, appellant, with his attorney in open court, withdrew and dismissed the above referred to motions and the case was set for trial on August 5, 1968, by the regular venire along with a special venire drawn for this purpose.
The testimony shows that on March 26, 1968, appellant was a member of a crew demolishing an old house for the City of Sheffield. An argument broke out in which the appellant was accused of reporting to his boss, Wayne Stockwell, that one of the members of the crew, Erin Thrasher, had stolen some tools, belonging to Mr. Stockwell. There were some harsh words passed between the two, and the appellant threw a soft drink bottle and a brick at Thrasher but failed to strike him. Thrasher left the scene to get the boss to have the matter settled, and the appellant also left the scene, went home, secured a pistol and came back to the job. Present when he came back, among several other members of the crew, were William Taylor, the man later killed, and Taylor's brother, Joe. Both of the Taylors, William and Joe, quarreled with appellant, who resumed his work for a very short time and suddenly he turned, drew a pistol and shot William Taylor in the head. From this gunshot wound, he died. Appellant immediately thereafter shot Joe Taylor who apparently had no part in the last part of the proceedings.
Appellant was some twelve feet or more away from William Taylor, the deceased, when he fired the fatal shot. William Taylor was unarmed except he had a plank in his hand which he evidently tore from the side of the house as a part of his work shortly beforehand. He was not advancing on appellant nor making any threatening gestures at the time. Appellant, immediately after he fired the shots, turned and walked away, going to the local police station where he surrendered himself and his weapon to the officer in charge.
From a careful reading of the evidence it appears to this Court that the group of men, including the appellant, had heretofore worked in harmony and had had little, if any, difficulty of any kind.
Appellant introduced as an expert witness Dr. Joseph Dennis Jackson to testify in connection with his plea of insanity and appellant argues that the court has the duty to declare to the jury whether or not a witness is qualified to give expert testimony. In this case the court refused to make that statement to the jury but permitted Dr. Jackson to testify that he was a medical doctor and a psychiatrist, and allowed him wide latitude in his testimony regarding the relation of the science of psychiatry and the impact of events on the human mind. The court, in a colloquy with the attorney for appellant, in open court did say:
'* * * I rule that he is a doctor and can testify as such and he can testify to these matters as relates to psychiatry or medicine and I rule that he can so testify.'
The jury had the full benefit of the testimony of the witness. The weight and credibility given the testimony of any witness is for the jury to determine. We hold there was no error in the ruling of the court.
The court refused to give at the request of the appellant the following charges in writing:
Defendant's Jury Instruction #1:
'If you find from all the testimony, that the defendant, at the time of the killing, suffered from a personality defect,...
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