Hallman v. State, 7 Div. 191
| Decision Date | 12 August 1952 |
| Docket Number | 7 Div. 191 |
| Citation | 61 So.2d 857,36 Ala.App. 592 |
| Parties | HALLMAN v. STATE. |
| Court | Alabama Court of Appeals |
Huel M. Love, Talladega, and McDonald & Moon, Birmingham, for appellant.
Si Garrett, Atty. Gen., and Robt. Straub, Asst. Atty. Gen., and Robt. P. Bradley, Montgomery, of counsel, for the State.
This is an appeal from a judgment of conviction of assault with intent to murder.
Accoring to the State's evidence the appellant was tried and adjudged guilty in the recorder's court of the City of Ashland, Alabama on a charge of public drunkenness. At the conclusion of the trial, two officers, Moore and Elliott, proceeded toward the jail with the appellant. En route the three men stepped off the sidewalk onto the street between two closely parked automobiles. At this point it was necessary for them to walk single file. Officer Moore was in front, the appellant was next, and Officer Elliott followed. As they were passing between the parked cars in this fashion, the defendant struck Mr. Moore on the back of the head. Mr. Moore immediately turned and struck the accused. This lick forced the latter back into the arms of Mr. Elliott. While in this position, the appellant removed Mr. Elliott's pistol from its holster and forthwith shot Mr. Moore. The bullet entered the leg. The physician testified that the nature of the injury was serious.
The appellant contended that he did not remove the pistol from the holster. He testified that he never had his hands on the gun; that when he was knocked back against Officer Elliott he heard the report of the pistol and immediately thereafter saw Mr. Elliott replacing the gun in the holster.
At the inception of the trial proceedings appellant's attorney moved for a continuance. It was claimed that a material witness was absent. This witness was a photographer who took pictures of the locale several hours after the affray. It appears that the solicitor agreed to admit that the pictures accurately depicted the scene as of the time they were taken. The evidence of the absent witness could have added nothing to the admitted facts. Clearly, the court did not abuse his discretion in denying the motion on this account.
It was insisted also that counsel had not been afforded ample time to prepare for trial. It appears that the attorneys were employed about a week or ten days before the trial. Certainly, there is no merit in this ground of the motion. Morris v. State, 193 Ala. 1, 68 So. 1003; Avery v. State, 237 Ala. 616, 188 So. 391; Cauley v. State, 33 Ala.App. 557, 36 So.2d 347.
Defendant's counsel moved for a change of venue. The proof fails wholly to establish that the accused could not be accorded a fair and impartial trial in Clay County.
The prime insistence in this aspect was based on the contents of a newspaper article which gave an account of the shooting. The article appears in the record. There is nothing in the report that is in any manner calculated to inflame the minds of the citizens of the county. It is a brief delineation of the facts according to the information of the author of the article.
The recent case of Campbell v. State, Ala.Sup., 58 So.2d 623, and authorities cited therein amply support our view that there is no merit in the insistence of instant concern.
All that was said and done at the time and place of the alleged offense constituted a part of the res gestae. Tracy v. State, 25 Ala.App. 417, 147 So. 685; Burk v. Knott, 20 Ala.App. 316, 101 So. 811.
On the second day of the trial and at about the close of the State's evidence in chief, it was made known to the court that defendant's stepfather had died suddenly a short time prior to the disclosure. This information was announced out of the presence of the jury. Appellant's counsel moved for a mistrial.
As we interpret the record, this unfortunate occurrence did not force the absence of any witnesses from the trial.
It was urged that to be deprived of being with his mother in her hour of sorrow would disturb and distress the defendant to such an extent that he could not continue with the defense of his case in a normal and effective manner.
The jury was kept together during the trial and it was not apprised of the death of appellant's stepfather.
Title 30, Sec. 100, Code 1940 empowers the trial judge to declare a mistrial 'when in the opinion of the court or judge there is a manifest necessity for the discharge, or when the ends of justice would otherwise be defeated.'
Of necessity the right thus given must address itself to the sound discretion of the presiding judge.
Generally speaking a mistrial is no trial. If something transpires or occurs during the progress of a trial, and it is made clearly manifest that justice cannot be afforded, the proceedings should be arrested and a mistrial ordered.
The record in the instant case discloses no indication that appellant or his counsel was hindered or hampered by the sudden death of the stepfather.
The defendant testified in his own behalf and gave a full account of his factual contention. He introduced several witnesses to support his position. So far as we are able to discern, the trial proceeded to its final conclusion in a normal and regular manner.
It is to be regretted, of course, that appellant's stepfather died; however we are unable to conclude that the presiding judge abused his discretion in denying the motion for a mistrial.
A short time after the case was submitted to the jury and it had retired to its room for deliberation, a bailiff delivered a personal message to one of the jurors. It appears that the officer went just inside the room while the door was still open. The officer had received the permission of the trial judge to deliver the message.
Counsel raised this question for the first time in his motion for a new trial. At the hearing on the motion the State introduced the bailiff in question and practically all of the jurors who tried the case. Each of these witnesses testified that the officer was at the door for a very short time and during this appearance no reference whatever...
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...indicate a mere erroneous ruling of law but specifies such fundamental error in a trial as would vitiate the result. Hallman v. State, 36 Ala.App. 592, 61 So.2d 857 (1952). The entry of a mistrial is not lightly to be undertaken and should only be ordered as a last resort. Thomas v. Ware, 4......
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