Gautney v. State

• Citation: 222 So.2d 175,284 Ala. 82
• Decision Date: 27 March 1969
• Docket Number: 1 Div. 521
• Parties: Pete GAUTNEY v. STATE of Alabama.
• Court: Supreme Court of Alabama

Page 175

222 So.2d 175

284 Ala. 82

Pete GAUTNEY v. STATE of Alabama.

1 Div. 521.

Supreme Court of Alabama.

March 27, 1969.

Rehearing Denied May 8, 1969.

Douglas Stanard, Mobile, for appellant.

MacDonald Gallion, Atty. Gen., and Walter S. Turner, Asst. Atty. Gen., for the State.

LAWSON, Justice.

The appellant, Pete Gautney, was convicted of murder in the first degree and was sentenced to life imprisonment.

Gautney was represented at all critical stages of the trial below and on motion for new trial by court-appointed counsel and he is represented on this appeal by the same lawyer as a result of an appointment by the trial court. Gautney has been furnished a free transcript.

In the trial below Gautney's counsel defended him in a most commendable manner. But in brief filed in this court Gautney's counsel argues only two grounds for reversal and the State's brief deals only with those two grounds; yet this court is required by the provisions of § 389, Title 15, Code 1940, in cases of this kind to 'consider all questions apparent on the record or reserved by bill of exceptions (transcript of the evidence).' In Strickland v. State, 40 Ala.App. 413, 115 So.2d 273, the Court of Appeals observed that, though the silence of the Attorney General's brief might be construed as confessions of error, such a situation cannot under our statute (§ 389, Title 15), be a decisive factor in reversing.

We will deal first with the two points treated in the brief filed on behalf of appellant.

Appellant's counsel says in brief that the judgment of conviction should be reversed because the transcript of the record does not show that the trial court complied with the provisions of § 63, Title 30, Code, to the effect that in a capital felony it is the duty of the court on the first day of the session, or as soon as practicable thereafter, to make an order commanding the sheriff to summon not less than fifty nor more than one hundred persons, including those drawn on the regular venire for the week set for the trial of the case.

The above-summarized provisions of § 63, Title 30, Supra, have no application to Mobile County. The selecting and impaneling of juries in Mobile County are controlled by the provisions of Act 366, approved November 6, 1959, Acts of Alabama 1959, Vol. 2, p. 955, as amended by Act 259, approved September 15, 1961, Acts of Alabama 1961, Vol. II, p. 2276. See Seals v. State, 282 Ala. 586, 213 So.2d 645. The trial court in selecting and impaneling a jury in this case followed the provisions of the Acts last cited above. Also see § 380, Title 15, Code, and Supreme Court Rule 25.

Appellant's 'Proposition Two (2)' reads: 'Written charges requested by the defendant in a trial of a capital case must be given to the jury by the court unless the same have been covered by court's oral charge.'

In the 'Argument' of his 'Proposition Two (2)' appellant says that the trial court committed error in refusing to give his requested Charges 1, 2, 3, 4, 5, 6, 7, 9, 10, 11, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 35, 36, 37, 38, 41, 42, 43, 44, 46 and 47. But the only cases cited in support of that 'Argument' are cases which held that it was error to refuse to give charges to the effect that 'if the jury, upon considering all the evidence, have a reasonable doubt about the defendant's guilt, arising out of any part of the evidence, they should find him not guilty,' where such charges were not covered by the court's oral charge or written charges given at the request of the defendant.

Amazingly enough, the record does not show that the trial court refused to give at the appellant's request a charge which is even remotely similar to the charges dealt with in the cases cited by appellant. On the contrary, the record shows that the court, at appellant's request, gave his requested written Charge 26, which reads: 'The Court charges the Jury that, if the Jury, upon considering all the evidence, have a reasonable doubt about the Defendant's guilt, arising out of any part of the evidence, they should find him not guilty.' For a review of the way this court has dealt with such charges, see Sanford v. State, 37 Ala.App. 603, 75 So.2d 109, where Judge Carr pointed out the conflicting holdings of this court relative to the refusal of such charges and followed our opinion in Rakestraw v. State, 211 Ala. 535, 101 So. 181, where we reversed because the trial court refused to give such a charge. The holding in Rakestraw seems to be presently considered by our appellate courts as being correct. See Lanier v. State, 43, Ala.App. 447, 192 So.2d 256.

We will consider the written charges which the trial court refused to give at the appellant's request after disposing of some other questions which are apparent on the record.

The trial court did not err in refusing to strike or quash the venire on the ground: 'That the Court has not conformed to all of the prerequisites relating to the drawing and summoning a special Venire as set out in Title 60, Section 63 of the Code of Alabama, 1940.' As we have shown above, § 63, Title 30, Code, no longer has application to Mobile County.

Reversible error is not made to appear in the action of the trial court overruling appellant's motion for the court to direct the court reporter to record verbatim 'the closing arguments to the Jury of the District Attorney and the Defendant's Attorney.'--s 262, Title 13, Code. See Bland v. State of Alabama, 5 Cir., 356 F.2d 8.

The rule was invoked. But the trial court overruled the following motion made by counsel for appellant, the defendant below: 'The Defendant further moves Your Honor and this Honorable Court to order that the witnesses for the State, who have testified in this case, adjourn to a different witness room, after they testify, other than the witness room which is assigned to the State's witnesses prior to their testifying in this case.' The trial court did not abuse his discretion in overruling that motion. The court gave explicit instructions to the witnesses that they should not talk among themselves about the case. Among other instructions to the witnesses, the court stated: '* * * So don't discuss this case among yourselves at all, don't talk about it, Don't talk to any witnesses that have already testified and don't discuss it at all, * * *' (Emphasis supplied) The record does not disclose that these instructions were in any manner disobeyed or that the rights of the accused were jeopardized by the refusal of the court to grant the motion. See Edgil v. State, 36 Ala.App. 379, 56 So.2d 677.

Reversible error is not made to appear in connection with the court's action in sustaining the State's challenge for cause to those prospective jurors who replied in the affirmative when asked by the court whether or not they had a fixed opinion against capital punishment.--s 57, Title 30, Code.

It is not necessary to express an opinion as to whether or not the holding of the Supreme Court of the United States in Witherspoon v. State of Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776, decided on June 3, 1968, would be controlling here if the jury had fixed Gautney's punishment at death. In Bumper v. State of North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797, decided on the same day as Witherspoon, the Supreme Court of the United States said that the holding in Witherspoon was not to be applicable where the jury recommends a sentence of life imprisonment as was done in this case. See Seals v. State, 282 Ala. 586, 213 So.2d 645.

The trial court did not err to a reversal in overruling the objection of appellant's counsel to a request made by the Assistant District Attorney that State's witness Hubbard mark on a diagram or drawing the place where he was sitting at the time of the shooting or shortly prior thereto, since the witness had previously pointed out on the diagram or drawing the place where he had been sitting, but it had not been marked.

During the cross-examination of State's witness Hubbard, counsel for appellant examined the witness from some notes which he had made at the preliminary hearing. During the course of this part of the cross-examination of Hubbard, the Assistant District Attorney stood where he could look over the shoulder of counsel for appellant and placed his hands on the shoulder of appellant's counsel, whereupon the latter stated: 'I object to the District Attorney walking over and putting his hand on my back. I ask for a mistrial.' The trial court overruled the motion. We can see no reversible error in this ruling.

Immediately after the court overruled the motion for mistrial, the following occurred:

'MR. BRUTKIEWICZ (Assistant District Attorney): Just don't have a slip of the lip now, just read what is written there.

'MR. STANARD (counsel for appellant): I object to that remark, Your Honor. I object to every remark of that type that has been stated.

'THE COURT: Gentlemen, don't consider that in reaching your verdict in this case. Go ahead and let's try the case.'

We think the remark of the Assistant District Attorney might well have been left unsaid, but in our opinion the court's prompt admonition to the jury removed any possible injurious effect the remark might have had on the jury.

The trial court did not commit reversible error in overruling appellant's objection to a question propounded State's witness Lillie Mae Waldon on redirect examination. The ground of the objection was that the question called for an answer which would not be in rebuttal to anything brought out on cross-examination. We have said that the allowance of a question on redirect examination of a witness, not in rebuttal to any matter brought out on cross-examination, rests in the discretion of the trial court. Treadwell v. State, 168 Ala. 96, 53 So. 290; Dukes v. State, 210 Ala. 442, 98 So. 368.

When the evidence for the State was all in and the State had rested its case, the appellant, defendant below, filed written ...