Hill v. State
| Decision Date | 28 June 1974 |
| Docket Number | 4 Div. 205 |
| Citation | 296 So.2d 921,53 Ala.App. 23 |
| Parties | Robert HILL v. STATE. |
| Court | Alabama Court of Criminal Appeals |
William J. Baxley, Atty. Gen., Montgomery, and Alston Keith, Jr., Sp. Asst. Atty. Gen., Selma, for the State.
Appellant-defendant, a partial indigent to the extent of obtaining a free transcript of the evidence, was indicted for murder in the first degree. He was convicted therefor with punishment fixed at life imprisonment. He appeals from a judgment entered pursuant to the verdict.
Argued grounds seriatim on this appeal are as follows:
'(12) For the Jurors trying the case did not obey the order of this court not to discuss the case among themselves prior to the submission of the case to the jury for deliberation.'
The movant (defendant) caused subpoenas to be issued to eight jurors who sat in judgment on the case. Some of these jurors testified about commenting to one or more other jurors about the evidence of some of the witnesses. This was done prior to the court's oral charge while the jurors were in recess. Each juror who acknowledged such comments testified that he did not deliberate on the guilt or innocence of the defendant until the evidence was in and the court had instructed them as to the law of the case.
We comment that it was an unnecessary burden on the jurors to bring them back to court (eight in number) for the adduction of their testimony by which the defendant sought to impeach their verdict of guilt by showing a premature deliberation contrary to the court's instruction.
Such procedure is clearly inhibited by many Alabama appellate decisions collated in Vol. 9, Alabama Digest, Criminal Law, k4157(1). Neither can such impeachment be shown by affidavit. Ingram v. State, 259 Ala. 324, 66 So.2d 843. Jurors may not impeach their verdict by disclosing deliberations. Webb v. State, 26 Ala.App. 241, 157 So. 262.
The trial court erred in failing to sustain the state's objection to such procedure. However, denial of the motion to vacate the verdict and judgment made the admission harmless. The jurors were inconvenienced by having to appear at the hearing on the motion with respect to such impeachment. The defendant suffered no prejudice by such premature deliberation.
'(13) For that one or more of the Jurors did not correctly answer the question propounded to them, 'Have you or any member of your family or relatives ever been convicted of a crime.''
We fail to find any evidence that any juror or any member of his family or relatives ever had been convicted of a crime.
'(14) For that one or more of the Jurors did not correctly answer the We likewise find no evidence that any juror was friendly, associated with, or related to anyone in the office of the District Attorney or the Assistant District Attorney, the Police Department or any law enforcement agency including the Sheriff's Department.
question propounded to them, 'Are any of you friendly, associated, or related to anyone in the District Attorney and Assistant District Attorney's Office, the police department, or any law enforcement agency including the Sheriff's Department?''
'(15) For that one or more of the Jurors did not correctly answer the question propounded to them, 'Have you ever been represented by Mr. Matthews or Mr. Boswell?''
There was no evidence adduced that any of the jurors had ever been represented by the District Attorney.
There was evidence introduced by the state which, if believed by the jury, was sufficient to sustain the verdict of the jury convicting the defendant of first degree murder. We will delineate pertinent evidence in this opinion.
Appellant contends that a brother of Lewie F. Trawick, the foreman of the jury who convicted the defendant, once worked for the City of Ozark as a policeman. The evidence discloses that the brother was fired long before the defendant's trial.
We here note that under a local rule of the circuit court, the defendant was required to submit in writing his questions concerning the bias, interests, and qualifications of the prospective jurors. The defendant submitted nineteen such written questions, all of which the trial court propounded to the prospective jurors. The court asked the counsel for the defendant if he desired any further qualifications. The answer was 'No, sir.' Thereupon, at the insistence of the state, the court elicited the occupation of each such prospective juror.
Question 14, supra, is in the present tense. The brother of Mr. Trawick, the foreman as we have noted, was not on the police force at the time of the defendant's trial. The probability is that having been fired, he was not very friendly to the Police Department of Ozark.
Sixteen, seventeen, eighteen, mineteen, twenty, twenty-one, twenty-two, twenty-three, twenty-four, and twenty-five, all refer to newly discovered evidence of certain persons.
There are several persons named in the motion for a new trial with respect to newly discovered evidence. The only evidence taken was that of James Frank Phillips, whose name did not appear in the list of persons whose testimony would be newly discovered evidence.
The evidence of such witness was taken as to what he knew about the case.
The ruling of the court denying the motion for a new trial did not include a ruling on the effect of Phillips' testimony. We might state that there is nothing in the record to show that, with respect to such witness, the defendant showed due diligence in procuring the evidence of this witness before the trial. C. L. Gray Lumber Co. v. Johnson, 239 Ala. 576, 195 So. 731. The evidence was insufficient to sustain the ground.
We think the motion for a new trial was not supported by any of the evidence and is without merit. It was correctly overruled.
The instant homicide occurred at Dot's Restaurant in Ozark, Alabama. The prosecution adduced the testimony of Leroy Kilow, a co-partner with his wife in the operation of the restaurant. This witness, Leroy Kilow, testified inter alia that the victim, I. V. Mixon, came into the restaurant with some others and then started toward the front door, after being warned of danger and not to do so; that as he reached the front door without going outside, he was felled by a shotgun blast, which was the cause...
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