Hawes v. State, 8 Div. 135

• Decision Date: 15 August 1972
• Docket Number: 8 Div. 135
• Citation: 48 Ala.App. 565,266 So.2d 652
• Parties: John W. HAWES v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 652

266 So.2d 652

48 Ala.App. 565

John W. HAWES v. STATE.

8 Div. 135.

Court of Criminal Appeals of Alabama.

Aug. 15, 1972.

Charles D. Rosser, Tuscumbia, for appellant.

William J. Baxley, Atty. Gen., and J. Victor Price, Jr., Asst. Atty. Gen., for the State.

PER CURIAM.

This appeal is from a conviction of manslaughter in the first degree with sentence fixed at seven years imprisonment.

On arraignment and again at the opening of the trial, appellant moved that he be committed to Bryce Hospital for psychiatric examination to determine whether he was mentally capable of standing trial. The motion was overruled each time by the court. It appears that on each occasion, the appellant was not confined, but free on bail.

There appears to be no statutory authority for such an order to be made by the court when the accused is not confined. Title 15, Code of Alabama 1940, Recompiled 1958, Sections 426 and 428.

Even when a defendant is confined, as provided in the statutes, the matter is discretionary with the court and it is under no duty to resort to those methods, but simply has the right to seek their aid for advisory purposes when in its discretion it would be helpful. Pace v. State, 284 Ala. 585, 226 So.2d 645; Howard v. State, 278 Ala. 361, 178 So.2d 520; Lokos v. State, 278 Ala. 586, 179 So.2d 714. No error appears in this action of the court.

Appellant plead not guilty and not guilty by reason of insanity. Before trial, on voir dire examination of the jurors to determine their qualifications to serve on the case at bar, the following occurred:

'MR. ROSSER: Are there any other members of the jury venire who feel--who have read the paper about this or discussed it or in any other fashion been made aware of this accident who feel that unless evidence comes in to change what you already feel, that you would probably find this man guilty? Would you please stand and give your name?

'MR. PATTON: I want to object to this. Mr. Rosser is putting all of this information in and I say that the information is prejudicing the jury and then he turns around and asks them if they are prejudiced.

'MR. ROSSER: At this time, since the State Solicitor has made a speech or a statement before the jury stating that what I have said makes my defendant look bad and stating further that it is prejudicing my defendant, I move for a mistrial and that this case not be tried before this jury.

'BY THE COURT: I overrule the motion for a mistrial.

'MR. ROSSER: May they answer the question that I have asked them?

'BY THE COURT: Mr. Patton are you objecting to the question?

'MR. PATTON: Yes, sir.

'BY THE COURT: I sustain the objection to the question.

'MR. ROSSER: All right. Then I'll ask the same question, ladies and gentlemen, except I will say, any information that you had before you came into the courtroom today--that you read in the paper or heard on the news or talked to anyone about it. Do you have a feeling that unless some evidence comes into this case to change that information that you have--do you feel that you would probably find this man guilty?

'MR. PATTON: Your Honor, I object. That is an improper question.

'BY THE COURT: I sustain the objection. I'll be glad to tell you why if you want me to.'

Under Title 30, Section 52, Code of Alabama 1940, Recompiled 1958, the parties in a civil or criminal suit have a right to examine jurors as to the qualifications, interest or bias that would affect the trial of a case and, under the direction of the court, to examine jurors as to any matters that might tend to affect their verdict.

Although the extent and course of the examination is largely within the discretion of the court, the inquiry permitted under this section should be liberal and extend to any and all matters touching the interest, bias or qualifications of the prospective juror.

'* * * gives to parties having respective peremptory challenges or the right to a struck jury, the right within the limits of propriety and pertinence to reasonably propound questions to jurors to enable such party or his counsel to intelligently exercise that right, though the matters of which inquiry is made are not a disqualification. * * *' Dyer v. State, 241 Ala. 679, 4 So.2d 311; See also Vickers v. Howard, 281 Ala. 691, 208 So.2d 72. (See cases collected under Ala.Digest Volume 13, Jury k131(3, 4, 5, & 6).

We are of the opinion that under the authorities, supra, the court was in error in sustaining the State's objection to the questions propounded to the jury, as set out above.

The record shows the following on the cross-examination of appellant's witness, Mrs. Hawes, the mother of appellant:

'Q. Mrs. Hawes, have you seen anything in your son since he had this accident--

'MR. PATTON: I am going to object to that. It has no bearing on this case.

'BY THE COURT: If you can show me how it is admissible, I will let it in.

'MR. ROSSER: I think even his present condition today would be admissible on the question of insanity at the time this thing happened.

'BY THE COURT: The Court, at this time, is going to sustain the objection. If it is admissible, I certainly want to let it in but that is the best I can do right now.'

In Nichols v. State, 276 Ala. 209, 160 So.2d 619, the Supreme Court stated:

'Where insanity is relied upon as a defense, every act of the accused's life which throws some light on such issue is relevant thereto. Hall v. State, 248 Ala. 33, 26 So.2d 566, and cases there cited.

'The issue of insanity gives much latitude, both to the defendant and the State, for the introduction of evidence of defendant's acts, declarations and conduct, prior and Subsequent to the alleged crime, subject to the limitation that the acts, declarations and conduct inquired about must have a tendency to shed light on the accused's state of mind when the act for which he is being tried was committed. Hall v. State, 248 Ala. 33, 26 So.2d 566; Barbour v. State, 262 Ala. 297, 78 So.2d 328, and cases there cited; Annotation 8 A.L.R. 1219.' (emphasis added).

It appears that the attorney for the appellant was attempting to show some conduct, act or declaration of the appellant since the incident for which he was being tried, but was cut off from doing so by the objection of the District Attorney and ruling of the court. After an explanation of the purpose of his question to the court by attorney for the appellant, he was denied the right to proceed on this course of examination by the court's adverse ruling. Under the authorities cited hereinbefore the action of the court was reversible error.

Both the appellant and one or more of his witnesses, were asked questions regarding appellant's drinking, which were objected to by appellant and the objections overruled by the court. The appellant, and some of his witnesses, testified to mental lapses or blackouts suffered by appellant over a period of years in which he would leave home sometimes for days, and not remember where he had been. Under the wide latitude allowed in the evidence where the plea of insanity is entered, this last named evidence was admissible and the questions directed to his drinking were properly allowed for purposes of impeachment and not to prove his intoxication at the time of the accident. He relied on the plea of...