Ison v. State
Decision Date | 16 August 1966 |
Docket Number | 3 Div. 201 |
Citation | 200 So.2d 506,44 Ala.App. 6 |
Parties | Gene Robert ISON v. STATE. |
Court | Alabama Court of Appeals |
Ralph Smith and John Patterson, Montgomery, for appellant.
Richmond M. Flowers, Atty. Gen., and Robt. F. Miller, Asst. Atty. Gen., for the State.
This appeal was submitted May 12, 1966.
From a voluntary manslaughter conviction on a jury verdict, Ison appeals from the resulting judgment of the Montgomery Circuit Court. The jury fixed his punishment at eight years in the penitentiary.
On the night of Sunday, August 30, 1964, Henry Hall was leaving Don's 500 Club on the Lower Wetumpka Road near Boylston in Montgomery County. He was a passenger in the car of Mr. Albert Thompson.
As the car was pulling away Mr. Ison, the defendant, flagged it down. He came up to the car on the right side.
The State's version of the ensuing tragedy as told by Mr. Thompson on direct was:
'A He walked up to the car.
'Q On which side?
Mr. Ison testified:
'A Well, they cranked up and they started to pull up and I walked up there out in the street and hollered, I said, 'I want to talk to you all a minute.' I was going to tell them about all the trouble I had the following morning. So they pulled up there and stopped and I walked up there and he rolled the window down and he said, 'what the hell do you want?' I said, 'I want to tell you about the trouble I have been having out there, and I sure would appreciate it if you all park.' I had my arm laying up on the glass.
'Q On the window of the car?
'A Yes, sir.
'Q Which side of the car?
'A On the right hand side of the car.
'Q All right. Go ahead.
'A And then they started, and he said, 'who in the hell are you?' And I seen there wasn't going to be--they started making moves, and his glass started coming up and I snatched my arm out of the window and the gun went off.
'Q How did the gun fire, Gene?
'Q How far had he gotten the glass rolled up at the time you pulled your hand through the opening?
'A I had my arm laying there and when I snatched it, it snatched my arm down the glass and it went off, and I turned and walked on in the house.
'Q Did you squeeze the trigger on the gun?
'A Not as I know of, no, sir.
'Q Did the gun fire accidentally?
'A Yes, sir.
'Q Is that the truth now, Gene?
'A Yes, sir.
'Q So help you God?
Mr. M. E. Bailey, a member of the Montgomery Police Department, was examined outside the presence of the jury. We extract in part:
'Q Did the Defendant make a statement to you?
'A Yes, sir, he did.
'Q Did you offer him any reward or hope of reward?
'A No, sir, I didn't.
'Q Did you make any threats or intimidate him in any way?
'A No, sir, I didn't.
'Q Was the statement he made free and voluntary?
'A Yes, sir, it was.
'BY THE COURT:
'Q Did you ask him if he wanted to make a statement?
'A No, sir, I did not.
'BY MR. CROSLAND:
'Q Was the statement volunteered by him?
'A Yes, sir, it was.
'Q You didn't ask him if he had anything to say how it happened, or ask him how it happened?
'A No, sir, I didn't.
'Q Tell us exactly what he did when he came out of the house, I believe is where you were cut off.
'A He walked up to the edge of the street there. He was still in his yard, and I asked him did he do it, and he said, 'yes, I shot him.' He said, 'something had to be done and I shot him.' At that time he gave me the gun.
It is to be noted that the predicate for voluntariness lies solely in the second and third questions and their answers above quoted. Neither question asks about the actions or words of any other person present besides Messrs. Ison and McKenzie.
We extend this enquiry to the questioning after the trial was resumed before the jury. Again we quote in part:
'Q You were on the stand previously this morning; is that correct?
'A Yes, sir.
'Q Now, I believe you testified up to the time you were stopped you had gotten back to the scene and Mr. Ison, the Defendant, was coming from his house; is that correct?
'A Yes, sir.
'Q Now, did Mr. Ison make any statement to you at that time?
'A Yes, sir, he did, when I asked him a question.
'Q What did he say, just tell what happened between you and the defendant.
'A He walked up to the edge of the road still in his yard. I asked him if he shot the person. He said, 'yes, I did, something had to be done and I have done it.' And at that time he gave me the pistol he had in his hand.
'Q Now, that was how long after the shooting had taken place he came out and said that?
'A Only been three or four minutes at the most.
'Q Was that right after You all had gotten to the scene?
'A Yes, sir, it was.
'Q Did you see him leaving the scene?
'A No, sir, I didn't.
'Q When you got up there, where was he, do you know?
'A The first time I seen him he opened the door to his house and walked outside.
'Q He was in the house?
'A Yes, sir, he was.
'Q He walked out?
'A Yes, sir.
'Q And came toward you?
'A Yes, sir.
'Q And that is when he said he did it and handed you the pistol?
'A Yes, sir, he did.
'Q Did he tell you that was the pistol that he used?
'A Yes, sir.' (Italics added.)
In Stewart v. State, 231 Ala. 594, 165 So. 840, we find this general rule:
We cannot apply the harmless error rule to the reception of this incriminating statement of the defendant. This because its omission to claim that the shooting was an unavoidable accident admits of an inference of guilt under the principle of damnifying silence when there is a duty to deny.
Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, will not apply to a retrial as it might under Gibson v. United States (5th Cir.), 363 F.2d 146, because the defendant was not in custody when he made the inculpatory statement.
The question of setting a capital case for trial where arraignment precedes by several months the service of the special venire appears unlikely to arise again. Corbbett v. State, 265 Ala. 394, 91 So.2d 509.
The judgment below is
Reversed and remanded.
After Remandment
In Part III of our former opinion, we glossed over the appellant's claim of error because the trial judge denied a motion to quash the venire.
We shall set out, in chronological sequence, the background for this contention:
1. February 16, 1965--minute entry (R. 2) shows arraignment with counsel and entry of pleas of not guilty and not guilty by reason of insanity with an order for summoning regular and special venire (Code 1940, T. 30, § 63), and setting trial of the indictment for March 1.
2. March 1--minute entry (R. 2) on motion of appellant continuing cause to 'next term' of court.
3. May 18--minute entry (R. 3) shows appellant and counsel in court:
'It is further considered and ordered by the Court that the Sheriff of Montgomery County summon ONE HUNDRED jurors, including those heretofore drawn on the regular venire for the week in which this cause is set for trial; the Court proceeds to draw from the jury box in open Court and in the presence of the defendant, the number of names, to-wit: THIRTY-FIVE persons with the regular jurors, heretofore drawn for the week in which this cause is set for trial, to-wit: SIXTY-FIVE, making the ONE HUNDRED jurors named in this order.
'It is further ordered by the Court that a list of all jurors drawn for the week in which this cause is set for trial and those that are hereby specially drawn, be forthwith served upon the defendant by the Sheriff of this County, a copy of the indictment having already been served upon the defendant.'
4. June 2--on motion of appellant, the court quashed the venire ordered May 18 to try defendant, because the sheriff had not personally served appellant with the venire lists and a copy of the indictment 'at least one entire day before the day set for trial'; § 63, supra.
5. June 2--cause again continued until the 'next term' of court.
6. July 20--minute entry which is verbatim that in 3 above, except a) trial set for August 2, 1965; and b) total number of veniremen set at 85, i.e., 25 and 60.
7. August 2--the ...
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