Grady v. State

• Decision Date: 25 September 1973
• Docket Number: 7 Div. 191
• Citation: 283 So.2d 453,51 Ala.App. 143
• Parties: Leroy GRADY v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 453

283 So.2d 453

51 Ala.App. 143

Leroy GRADY v. STATE.

7 Div. 191.

Court of Criminal Appeals of Alabama.

Sept. 25, 1973.

Rowan S. Bone, Gadsden, for appellant.

William J. Baxley, Atty. Gen., Montgomery, and J. Robert Ramsey, Sp. Asst. Atty. Gen., Dothan, for the State.

CLARK, Supernumerary Circuit Judge.

Appellant was tried on an indictment, to which he pleaded not guilty, charging him with murder in the first degree of William Kinzalow. The jury found him guilty of manslaughter in the first degree and fixed his punishment at imprisonment in the penitentiary for a term of ten years. The trial court rendered judgment and sentence accordingly, from which this appeal was taken.

Testimony of a State's witness was that in the early evening of June 1, 1963, he and several others, including defendant-appellant and William Kinzalow, were gambling at dice in a garage operated by Kinzalow; defendant won 'lots of money,' and Kinzalow demanded that defendant pay him money that Kinzalow claimed defendant owed him for work on an automobile, which defendant denied; a heated argument ensued, and Kinzalow grabbed a large amount of money out of the hands of defendant, much larger than the amount of $14.00 that Kinzalow claimed defendant owed him; Kinzalow pulled a gun out of his pocket, and the defendant then left the scene. In about half an hour, defendant returned with a gun, a 45 automatic pistol; when Kinzalow saw defendant coming, Kinzalow went for his gun, and shots were fired. When the shooting commenced, all present, except defendant and Kinzalow, dispersed. The operator of the business next door heard the shots, went toward the garage and met defendant walking out of the garage with a 45 automatic pistol in his hand. This witness testified that he then went into the garage and found Kinzalow on the floor, and that Kinzalow had been shot. He did not see a gun in the garage. Neither he nor any other witness testified that the gun in the hand of Kinzalow was ever seen thereafter.

Etowah County Coroner Noble Yocum testified that he examined the body of Kinzalow the evening of his death; that deceased had been shot in the arms, chest, and abdominal region; that there 'was a total of eleven different wounds' on the body and six or more of them were entrance wounds.

Defendant was indicted in September 1963. A writ of arrest was promptly issued, but it was not executed until December 1971.

Police Captain James A. Bragg testified that in December 1971 he located defendant in jail in Atlanta, Georgia, and returned him to Gadsden; that after defendant had been fully advised of his constitutional rights defendant made and signed a written statement, which was introduced in evidence. That part of the statement relating what occurred after defendant left the garage was as follows:

'. . . Then I left out and went back over in the project and started drinking whiskey. The next thing that I knowed (sic) I woke up in Cartersville, Georgia at a friends house. They call him (S)late. I never heard him called by anything else. I went across the street and got me a half pint of whiskey. I called someone here in Gadsden, Alabama and asked them what had happened, and they said, or someone had said that I had killed Kinzalow. I stayed over in Cartersville two or three days and then went to Atlanta. . . .'

Evidence offered by defendant was limited to the testimony of four witnesses, whose testimony related exclusively to the subject of defendant's character or reputation, which they considered good.

Although the point is not raised on appeal, a written motion was made by defendant, on the day of trial but before the jury had been selected, 'to abate, dismiss and strike this cause', setting forth five grounds, three of which asserted invalidity in the warrant of arrest. The other two grounds were as follows:

'4. For that there was a systematic exclusion of the members of the jury panel from which the Grand Jury was drawn which returned this indictment.

'5. For that there was a systematic exclusion of the jurors which will try this matter before a trial jury.'

Evidence offered by defendant on the motion consisted of a transcript of the testimony of the clerk of the Jury Commission of Etowah County that she had previously given in another case. The court overruled the motion.

Although testimony on the trial of the case reveals that defendant is a Negro and the victim was a white man, the record in this case, including the questions to and answers of the clerk of the Jury Commission, which was the only evidence offered on the motion to abate, etc., fails to contain any charge, suggestion, or hint to the effect that there was an exclusion, purposeful or otherwise, from the jury roll of, or any kind of discrimination against, any person, persons or groups of persons. There was evidence to the effect that the jury box had not been refilled since 1968, although names had been added to the jury roll and cards bearing the names placed in the jury box. Cards of jurors who had served since 1968 had not been placed back in the box. The evidence indicates that there was a failure to comply precisely with Title 30, § 20, Code of Alabama, 1971 Cumulative Pocket Part:

'The jury commission shall meet in the courthouse at the county seat of the several counties annually, between the first day of August and the twentieth day of December, and shall make in a well-bound book a roll containing the name of every citizen living in the county who possesses the qualifications herein prescribed and who is not exempted by law from serving on juries. . . .'

The evidence does not show with satisfactory clarity the extent of any variation from the statutorily prescribed procedure for the maintenance of an appropriate jury roll and placing cards in the jury box, but it does show that there was no contention made by anyone that the constitutional rights of anyone, particularly this defendant, were in any way impaired. If they had been in this case, it would clearly be our duty to rectify the injustice, in accordance with the uniform policy of the appellate courts of Alabama, as well as the Supreme Court of the United States, but we would not be authorized to presume discrimination, even if it were charged. Swain v. State, 275 Ala. 508, 156 So.2d 368; Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759. It necessarily follows that we cannot do so in the absence of any semblance of a contention that there was discrimination. Out of fairness to appellant, it should be said that there is no such contention on this appeal. The trial court was not in error in overruling defendant's motion.

Each of appellant's four specific assertions of error is based upon the refusal by the trial court of one of defendant's requested charges numbered 33, 34, 37 and 39.

Charge 33 would have precluded a conviction of defendant upon the hypothesis of a bona fide belief that his life was in danger and reasonable cause for believing that he was in imminent danger at the time deceased was shot. The charge pretermitted consideration of freedom from fault and the qualified duty to retreat as essential elements of the defense of self defense, and it was properly refused. Gardner v. State, 40 Ala.App. 276, 111 So.2d 916; Cauley v. State, 33 Ala.App. 557, 36 So.2d 347; Ford v. State, 33 Ala.App. 134, 30 So.2d 582.

Charge 34 is similar in most respects to Charge 7 in Bowman v. State, 35 Ala.App. 420, 47 So.2d 657, in which the court stated:

'It appears the authorities support the view that if the question of retreat is not involved the charge should be given, otherwise it should be refused. We adhered to this theory in the case of Doswell v. State, 34 Ala.App. 546, 42 So.2d 480. See also, Bell v. State, 20 Ala.App. 425, 104 So. 443; Huff v. State, 23 Ala.App. 426, 126 So. 417.'

The question of the duty to retreat was clearly involved in this case. It should be noted also that the charge is faulty as applied to the facts in this case in that it refers twice to 'the prosecuting witness' instead of to the deceased.

Any question as to the propriety of the refusal of Charge 37 should have been laid to rest by what was stated by Justice Harwood, then Presiding Judge of the Court of Appeals, in Petty v. State, 40 Ala.App. 151, 110 So.2d 319 (in discussing Charge 8 there--the same in all material respects as Charge 37 here), and quoted with approval by Justice Merrill in Griffin v. State, 284 Ala. 472, 225 So.2d 875, as follows:

"In the first place, charge 8 omits all reference to duty to retreat....