Fuller v. State, 6 Div. 917

Citation269 Ala. 312,113 So.2d 153
Decision Date12 February 1959
Docket Number6 Div. 917
CourtSupreme Court of Alabama
PartiesAlbert FULLER, alias Albert F. Fuller, v. STATE of Alabama.

Beddow, Gwin & Embry, Beddow & Jones, Roderick Beddow, Robt. W. Gwin, Roderick Beddow, Jr., Birmingham, and V. Cecil Curtis, Phenix City, for appellant.

John Patterson, Atty. Gen., and Bernard F. Sykes, MacDonald Gallion, Geo. Young and Jas. Webb, Asst. Attys. Gen., for State.

LIVINGSTON, Chief Justice.

The appellant, Albert Fuller, was indicted on December 9, 1954, by the Grand Jury of Russell County, Alabama, on a charge that he unlawfully, and with malice aforethought, killed Albert L. Patterson by shooting him with a gun or pistol against the peace and dignity of the State of Alabama.

On January 27, 1955, the appellant filed a petition in the Circuit Court of Russell County, Alabama, requesting a change of venue. On the same date, Honorable J. Russell McElroy, Circuit Judge, granted the change of venue and ordered the trial of the case removed to the Tenth Judicial Circuit of Alabama; and on the same day the appellant was arraigned in the Circuit Court of Russell County, Alabama, and entered a plea of not guilty. Thereafter, on January 31, 1955, the appellant was arraigned in the Circuit Court of the Tenth Judicial Circuit of Alabama, and entered a plea of not guilty. The cause was set for trial on February 14, 1955, and upon being called for trial on February 14, 1955, it was continued until February 15, 1955, and on which latter date the trial began and continued for approximately four weeks. On March 11, 1955, the jury returned a verdict of guilty of murder in the first degree and fixed Fuller's punishment at life imprisonment in the penitentiary.

A motion for a new trial was filed on April 11, 1955, and regularly continued several times. On June 6, 1955, an amendment to the motion for a new trial was filed. The motion for the new trial, as amended, was heard on June 13, 1955 and overruled on June 16, 1955.

Fuller was sentenced in accordance with the verdict of the jury, and he appealed.

The appellant argues eight propositions of law for a reversal of the cause, and we will treat them in the order in which they are argued in appellant's brief. But before proceeding to discussion of the several propositions argued, and for a clearer understanding of this opinion, we think it not amiss to here state some of the background and uncontradicted facts in the case.

Albert L. Patterson, long a resident citizen of Phenix City, Russell County, Alabama, was the Democratic nominee for the office of Attorney General of the State of Alabama in the May 1954 Democratic Primary Election.

He was killed on the night of June 18, 1954, at about 9:00 o'clock p. m. Patterson's office was on the second floor of the Coulter Building in downtown Phenix City, Alabama. On the night that he was killed, his automobile was parked in an alley beside the Coulter Building. Patterson had left his office about 9:00 o'clock and proceeded to his automobile, and had apparently gotten in it. He was shot, after which he apparently got out of the car and walked around in front of the Coulter Building where he collapsed on the sidewalk and died.

The appellant, Albert Fuller, and two others were indicted, separately, by the Grand Jury of Russell County, Alabama, for murder in the first degree as a result of Patterson's death. Albert Fuller was at the time of Patterson's death the Chief Deputy Sheriff of Russell County, Alabama.

The case of this appellant and Arch Ferrell, one of the other accused in Patterson's death, was set for trial in Jefferson County on the 14th day of February 1955, but was, on that date, continued to February 15, 1955. One venire was drawn and summoned for the trial of both cases. The jury was drawn, summoned and impaneled under the provisions of Title 62, Sec. 196 et seq., Code of 1940, which is a local jury law applicable to Jefferson County, Alabama.

Appellant's Proposition No. I

'The court erred in making a statement to the venire from which the jury was selected to try appellant's case which intimidated and overreached the members of the venire to such an extent as to deprive the appellant of a fair and impartial trial.'

For better understanding and before quoting the statement in question, we here state some of the circumstances surrounding its making.

On February 14, 1955, at which time the state had not indicated whether they would try the appellant first or Arch Ferrell, one of the other accused, whose trial was set for the same date, Presiding Judge Russell McElroy proceeded to hear excuses of veniremen, such as sickness, disqualification, and other claims of exemptions from jury duty. Before hearing said excuses, the court stated:

'For whatever possible value any exception on the part of any party to any case, to the court's excusing, or the court's refusal to excuse a juror, may have, it is ordered by the court that the State of Alabama and each of the defendants, Ferrell and Fuller, do automatically have an exception to any ruling or decision of the court made in the course of the organization of these jurors; and that it shall not be necessary that the State or any of said defendants expressly express that they or any of them take any exception to any such decision or ruling of the Court.'

The trial court then proceeded to hear the excuses of the veniremen in reference to both cases set for trial that day, that of appellant, Fuller, and the other accused, Ferrell. Subsequently, and after the State of Alabama had announced ready and had elected to try Albert Fuller first instead of Ferrell, the other accused whose case was set for the same date, the trial court, by way of explanation, made the following statement to the veniremen:

'The Court will propound to you certain questions, gentlemen. It is your duty as a citizen of this republic to make sincere answers to those questions, and not to make insincere or false answers. That would be true with reference to any question that the judge might propound to you, as well as also in making your reply to any question propounded to you by a lawyer in the case that has to do with any bias or prejudice or sympathy, or things of that sort, any question that the Court might allow.

'If you are made out of tissue paper, we would like to know it right now. If you are not willing to perform a duty as a juror, you don's consider that among the duties of a citizen of this country, if you want to discharge it, if you are full of fire, if you are made, or feel by your convictions before you have heard the evidence, whether your convictions should tell you there should be a verdict of guilty--verdict of acquittal, we would like to know it.

'The Court is going to ask you certain questions. As I say, the Court--you are under a legal duty to make sincere answers to those questions, and not to shape your answers so as to render you subject to a challenge for cause for that purpose.'

The trial court then proceeded to question the jurors concerning their residence, citizenship, indictments for a felony, relationship to defendant and to the deceased, and circumstantial evidence; whether or not veniremen had made any promises or given any assurance of a conviction or an acquittal. The trial court then made the following statement which is the basis for appellant's Proposition No. 1:

'Now, the next question, gentlemen, that the court is going to ask you, I am going to tell you what it is, and I am going to explain it to you. It is going to be this: do you have a fixed opinion as to the guilt or innocence of the defendant that would bias your verdict in the case?

'Well, if you have lived, and you have, since June 18, 1954, by--shared the ordinary fortunes of life that come to adult persons, you, of course, have read a lot of things in the papers, and you have heard a lot of talk, none of which would be evidence here.

'A person that hears anything at all about a matter begins having some kind of an opinion. If you have any sense, you can't help but have some kind of opinion about anything, about the Formosa situation, or about how the foreign affairs of this country are generally being conducted. If you also have any further sense, you know that your capacity to judge is limited by reason of the lack of information. It is impossible for the whole picture, the problem facing the Secretary of State and the President of being made as clear to you as it is to them.

'Well, we will go back just a minute to the Sheppard trial [State v. Sheppard, 165 Ohio St. 293, 135 N.E.2d 340] that took place up in Cleveland, Ohio. That was tried. There were two trials of that case. One was in the court room, and the other was--back before what we call the great bar of public opinion that did not hear the evidence in the case. Have you a judgment about that? A lot of people say, well, I don't think they proved him guilty, and a lot say I think they proved him guilty. Do you know who is a better judge of that than you? The folk that sat there and heard the evidence. That is true in any case, and that is true whether the verdict is a verdict of guilty, or a verdict of acquittal.

'Now, a fixed opinion, gentlemen, means a buttheaded opinion; it means a stubbornness that refused to be governed by testimony of witnesses who swear they have personal knowledge. It means the kind of buttheadedness that you would find in a man with a head the shape of a baseball. Don't ever try to argue with him. He has an opinion on everything, and if God could speak out of heaven to him, it would have no effect on his opinion.

'A fixed opinion means--if you say you have a fixed opinion, it means you are willing to go on information the authenticity and the accuracy of which you have no knowledge, instead of going by the testimony of human beings who come here and swear that they are telling the truth.

'With that explanation,...

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