Holland v. State, 8 Div. 140

• Decision Date: 24 October 1972
• Docket Number: 8 Div. 140
• Citation: 268 So.2d 883,49 Ala.App. 104
• Parties: Johnny Wilson HOLLAND v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 883

268 So.2d 883

49 Ala.App. 104

Johnny Wilson HOLLAND v. STATE.

8 Div. 140.

Court of Criminal Appeals of Alabama.

Oct. 24, 1972.

Bryce U. Graham, Tuscumbia, for appellant.

William J. Baxley, Atty. Gen., and John A. Yung IV, Asst. Atty. Gen., for the State.

PER CURIAM.

The appellant was tried on an indictment charging murder in the first degree, but convicted for manslaughter in the first degree and sentenced to ten years imprisonment.

On October 11, 1965, at arraignment, the appellant plead not guilty by reason of self-defense with special leave to file any further pleadings or motions in the cause on or before October 12, 1965. On said date, the appellant did file a motion to quash the venire, which had been drawn by the court on said date for the trial, which had been set for November 1, 1965. The state took issue on said motion and the court heard testimony offered by both the appellant and the state. The regular venire consisted of eighty-one (81) names. It appears that the jury box had become depleted to such an extent that there were not enough names left for the court to draw a special venire, and one of the members of the jury board put in about two hundred (200) names, who were alleged to be on the roll and qualified jurors. This was done at the request of the court on October 11 or 12, 1965, and the special venire for the case was then drawn by the court. This seems to be the basis of the motion to quash. At the conclusion of said testimony, the motion was overruled and appellant noted an exception.

We have carefully examined the evidence offered in this cause and have concluded that there was no error by the court in overruling the motion.

The general rule governing in such cases is that no objection can be taken to any venire of jurors except for fraud in drawing or summoning. Title 30, Code of Alabama 1940, Recompiled 1958, Section 46. Admitting, for the sake of argument, that there was some irregularity in the action of the jury commission of Colbert County in filling the jury box as required by law, this, in itself, would not render the venire void. In the absence of proven fraud, the venire cannot be quashed as attempted in this case. Welch v. State, 28 Ala.App. 273, 183 So. 879. No fraud appears in the evidence directed to the motion.

According to the testimony, the deceased Alphonso Jarmon, was killed by being shot several times on the afternoon of August 8, 1965, the exact time, under the testimony, varying from 1:30 P.M. to 4:30 P.M. in the afternoon. Under the testimony, the appellant, Johnny Wilson Holland, and Charles Edward King, who was not on trial in this cause, were present and doing the shooting at or near a beer joint or 'juke joint' in Colbert County. More than one weapon seems to have been used by the two, and empty shells of 22 and 32 caliber, and from a shotgun, were found at the scene. Immediately thereafter, it appears that appellant and King were intercepted at or near a cemetery some two or three miles from the place of the shooting and that the appellant, who was driving an automobile, with King riding therein, had collided with another automobile in a funeral procession. Two witnesses, J. B. Malone and Louis Malone, testified that a pistol, 32 Caliber, a shotgun, and a part of a rifle were found in the possession of the two parties; the pistol being taken from the appellant, and the shotgun from King. The rifle part was taken from some place in the car. The guns were later offered in evidence by the State.

The appellant objected strenuously to anything that occurred at or near the cemetery on the ground that it was not a part of the res gestae and was inadmissible for any purpose. The court overruled the objection. In the case of Willingham v. State, 261 Ala. 454, 74 So.2d 241, in which the state was allowed to prove that the defendant returned to the dance hall after the difficulty and was dancing, the court stated:

'The acts, declarations, and demeanor of an accused, before or after the offense, whether a part of the res gestae or not, are admissible against him, but unless (they) are a part of the res gestae (they) are not admissible for him.'

Jones v. State, 181 Ala. 63, 61 So. 434--439; Thomas v. State, 18 Ala.App. 268, 90 So. 878.

In this case we are of the opinion that this proof was of probative value as bearing on the defendant's connection with the shooting which had occurred only a short time before and tended to connect him with the difficulty when all the evidence offered by the State was considered by the jury.

We think further that this evidence tended to show flight on the part of the appellant from the scene of the difficulty, which is admissible under a familiar principle of law....