Gregg v. State
Decision Date | 20 September 1966 |
Docket Number | 7 Div. 843 |
Citation | 195 So.2d 803,43 Ala.App. 538 |
Parties | Anthony Lofton GREGG v. STATE. |
Court | Alabama Court of Appeals |
Beck & Beck, Fort Payne, for appellant.
Richmond M. Flowers, Atty. Gen., and Paul T. Gish, Jr., Asst. Atty. Gen., for the State.
This cause was submitted on May 19, 1966, only on a brief from appellee.
Gregg was indicted for robbery and was convicted of assault with intent to rob. The court sentenced him to four years imprisonment.
We have carefully reviewed the entire record under the mandate of Code 1940, T. 15, § 389, and affirmed the judgment below without opinion September 20, 1966.
October 3, on applying for rehearing, appellant filed a brief which, under the Statement of Facts, sets out in part:
'* * * It further appears that during the trial of the case, after the jury had retired, the bailiff, Mr. Stone, about 8:30 p.m., after the jury had had their supper, one of the Jurors knocked on the Jury room door and stated they could not agree, and the Bailiff, Mr. Stone, told the Juror to get back in there and decide the case, as it was costing the County a lot of money. R.P. 78, through 93. This was the evidence taken on the motion for a new trial, which was duly filed.
'The Judge, in his order overruling the motion for a new trial, made this statement: R.P. (The page is not numbered, but is the page next to the last page in the record)
From the transcript of evidence on the motion for new trial, we have condensed the following:
Juror T. C. Ray testified (on the new trial motion) that before supper the bailiff 'said something about making a decision, if we could.' (R.86.)
Juror D. F. Hicks did not hear what the bailiff said. Hicks was a little hard of hearing.
Nor did Mr. Lester Fricks recall any statement by the bailiff; also Alva Clark (R.89, 90); Clarence Harris (R.93); Earl L. Smith (R.97); and Frank Hicks (R.107, 108).
Juror George W. Dukes did not hear the statement imputed to the bailiff (R.95, 96). But Messrs. Pete Fuller (R.96, 97) and Hoyt McGullion (R.99, 100) did hear the statement.
Juror Orval Rains heard the bailiff say, in substance, The bailiff did not refuse to let the jury see the judge (R.91, 92).
Juror Billy M. Galloway testified:
'Q. Did you hear the Bailiff say, 'You fellows go in there and decide the case, if you can. It is costing the County a lot of money?
'A. I am the one that talked to the Bailiff. What was said before we went to supper was--we had a ten to two vote, and I told the Bailiff that it looked like we had a hung jury, and he said he would go tell the Judge. We went to supper, and when we ate supper we went back in the jury room. We decided to take one more vote, and we voted again and reached a decision. All twelve of us thought he was guilty, but it was on the question of the extent.
'Mr. Morris Beck: We object to that.
'The Court: I sustain the objection to that. I think you are going into the deliberation of the Jury. That is not before the Court now on this particular motion.
'Q. Did the Bailiff ever refuse to let you come to see the Judge?
'Q. Did you hear him make that statement that I just mentioned?
'A. Well, I don't know whether they were words like that or not.
'Q. What did he say?
'A. At the time it looked like we had a hung jury. He said something to this effect to me--he didn't say it to the rest of the Jury, I was at the door--he said for us to reach a decision, if we could, that he would come and tell the Judge.
'Q. He said, 'Reach a decision, if you can, I will come and tell the Judge?'
'A. Yes, sir.
'Q. He didn't tell you how to decide the case?
We consider the court--in the face of the general form of objection interposed--excluded from Galloway's answer above: (a) the reference to a 'ten to two vote'; (R.94) (b) 'We decided to take one more vote and we voted again * * *'; and (c) 'All twelve of us thought he was guilty, but it was on the question of the extent.'
It was proper for the jury to state that it was hung, though not as to whether on guilt or punishment nor as to their numercial division. Galloway was quite certain the bailiff made no reference to the pecuniary expense of a protracted trial.
Cited to justify reversal of this irregularity are Taylor v. State, 18 Ala.App. 466, 93 So. 78, and Roberts v. State, 26 Ala.App. 331, 159 So. 373.
Consideration needs also to be given to the following civil cases: Kansas City M. & B.R. Co. v. Phillips, 98 Ala. 159, 13 So. 65; Alabama Fuel & Iron Co. v. Rice, 187 Ala. 458, 65 So. 402; Pollard v. Williams, 238 Ala. 391, 191 So. 225; Driver v. Pate, 16 Ala.App. 418, 78 So. 412; and Barnett v. Patillo, 33 Ala.App. 599, 36 So.2d 450.
In Orr v. State, 269 Ala. 176, 177, 111 So.2d 639, a trial judge's reference to the public expense was in at least one of five aspects of a verdict urging instruction. However, in 40 Ala.App. 45, 111 So.2d 627, are listed pro and con the cases where such a reference was the sole factor. Ashford v. McKee, 183 Ala. 620, 62 So. 879.
We ascribe less coercive force to this remark coming from a bailiff than we would had it come from the sheriff or the judge. In Orr, supra, the judge's remark about public expense was not the sole ground for reversal.
In Taylor, supra, the sheriff told a deliberating juror that if convicted the prisoner would probably not be tried on two other charges. Also a showing was made that the sheriff told three of the jury that 'the judge would not permit the jury to make a mistrial of this case,' and the like.
We quote from the pertinent part of Judge Samford's opinion, Roberts, supra:
* * *'
The bailiff who keeps the jury, if they choose to retire, should be sworn by the trial judge or the clerk substantially thus:
--Jones, Alabama Practice & Forms, § 18000.
See Jones, Alabama Practice and Forms, § 18000; Archbold, Criminal Practice and Pleading (8th Ed.) 555; and Directions for Holding Court in Colonial Georgia, 2 American Journal Leg.Hist. 321, 325, 326, 338, 339 and 342.
In Arnett v. State, 225 Ala. 8, 141 So. 699, the high sheriff who kept the jury overnight got a city policeman to...
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