Jackson v. State, 4 Div. 319

• Decision Date: 09 April 1970
• Docket Number: 4 Div. 319
• Citation: 234 So.2d 579,285 Ala. 564
• Parties: Johnny Mack JACKSON v. STATE.
• Court: Alabama Supreme Court

Page 579

234 So.2d 579

285 Ala. 564

Johnny Mack JACKSON v. STATE.

4 Div. 319.

Supreme Court of Alabama.

April 9, 1970.

Smith & Smith, Dothan, Jackson W. Stokes, Elba, for appellant.

MacDonald Gallion, Atty. Gen., David W. Clark, Asst. Atty. Gen., for the State.

HARWOOD, Justice.

This appellant was found guilty of rape by a jury which fixed his punishment at death. Judgment was entered pursuant to the verdict. A motion for a new trial was duly filed and after a hearing was denied. This appeal followed.

The evidence presented by the state in the trial below tends to show that the victim had returned to her home in Dothan around 4:30 P.M., on 7 January 1967, after a shopping trip. She placed some groceries in the kitchen and then went into the bedroom where she removed her shoes, hose, and girdle, and lay down on a bed. She had turned on the lights in the kitchen, den, and bedroom. She soon fell asleep. She awoke later and saw the appellant in the bedroom. He came to the bed and ordered her to remove her clothes. She refused. The appellant threatened to kill her and stabbed her in the left thigh with a sharp instrument. He then tore off her clothes and raped her.

He dragged her into the dining room and struggled with her. During this struggle, the appellant stabbed the victim in the neck. She bled profusely from this wound and the appellant turned her loose. At this time the victim went out of the back door of her house and to her sister's house next door. Her sister admitted her, and hearing the victim's complaints and observing her bloody condition, called an ambulance and the police.

The ambulance, with a doctor, arrived and the victim was taken to a hospital. The victim had become cyanose and had difficulty in breathing. She was taken to the emergency room and a trachaeotomy was performed. She was then taken to an operating room where an operation was performed on her neck wound. While she was anesthetized, a pelvic examination was made. Seminal fluid was found in her vagina, which upon laboratory examination disclosed immobile spermatozoa.

Upon investigation at the victim's home shortly after their arrival, the police found a pair of black handled scissors under a table in the dining room. These, along with a shirt, trousers, and shorts which the appellant wore at the time of his arrest, were forwarded to the state toxicologist at Auburn University. Examination of these articles revealed that human blood was on all of them. Semen stains were found on the shorts. In addition to blood, grease was visible on the scissors. The victim testified the scissors did not belong to her.

Fred Green testified that on the Saturday this offense was allegedly committed, he had employed the appellant and another man that morning to clean up some restaurant equipment prior to storing it in a warehouse. A pair of scissors, similar in size, make, and color, to the scissors found in the victim's home, along with knives, meat cleavers, etc., was in the restaurant equipment. Green locked the warehouse later in the day. On Tuesday after the alleged offense, he accompanied a police officer to the warehouse, unlocked it, and made a search for the scissors, which could not be found.

In his own behalf, the appellant testified he had not been at the victim's home at any time, and was not guilty of raping her. His testimony further tended to establish an alibi, and a number of witnesses were presented to corroborate the appellant's alibi testimony.

This offense was committed in Houston County. In the Circuit Court of that county the appellant filed a motion for a change of venue. This motion was granted, and the trial was removed to Coffee County.

Prior to removal of the trial to Coffee County, the appellant filed a motion to quash the indictment on the grounds that negroes were systematically excluded from the jury roll of Houston County because of their race. The motion was also filed requesting that the jury roll of Houston County be produced in court in order to enable the attorneys representing the appellant to copy or photostat the same.

At the hearing on these motions, attorneys for the appellant, and the appellant himself when questioned by the court, made known to the court that they did not desire to present any evidence in support of the motions to quash the indictment. The state did, however, present evidence showing that negroes were not systematically excluded from the jury rolls of Houston County because of race.

The court denied the motion to quash, and also the motion for the roll to be produced for copying or photostating.

Thereafter the appellant filed a motion for a change of venue, and after hearing, the court entered an order removing the case to Coffee County, Elba Division, for trial.

In Coffee County the appellant filed motions to strike or suppress the jury venire drawn to try him, a motion to examine the jury roll and photostat the same, and a motion for the production of certain evidence.

The court after a hearing, granted the motion to strike the jury venire apparently because the court considered that too few negro women were on the jury roll. The court ordered the jury commission of Coffee County to empty the jury box and make up a new jury roll for the Elba Division of Coffee County.

This was done, and another venire was drawn for the trial of the appellant.

Another motion to suppress the last drawn venire was filed. On the hearing on this motion, the evidence introduced by the appellant consisted only of the population figures of Coffee County as a whole as shown by the last federal census. These figures showed the white population, male and female, and the negro population, male and female.

The state introduced as witnesses the members of the Coffee County jury commission. The testimony of these witnesses was directed toward showing that following the court's order to refill the jury box for Coffee County, Elba Division, they had placed therein the names of citizens qualified for jury service, male and female, white and colored. They stated that in seeking the names of qualified citizens they had contacted reputable citizens in all parts of the Elba Division of Coffee County, white and negro, and had written letters to white and negro citizens seeking names and recommendations for prospective jurors. No person had been excluded from the jury box because of race, creed, or color.

The evidence also showed that the larger percentage of the negro population of Coffee County resided in Enterprise Division of the County, and that in the Elba Division several of the beats had no negroes residing therein, and other beats therein had only one or two negro families, all of whom were past the age for jury service.

Neither the jury cards nor the jury roll contained any information indicating the race of the juror.

The federal census was for Coffee County as a whole, and does not reveal separately the population of the Elba and Enterprise Divisions of the Circuit Court.

The court found that the new jury roll contained 1314 names, and as nearly as could be determined from the evidence presented there were 802 white males, 408 white females, 68 negro males, and 36 negro females on the jury roll.

Under the evidence presented we think it clear that the appellant failed to establish that negroes were systematically excluded from the jury rolls of Coffee County, Elba Division. There was no error in the action of the court denying appellant's motion to suppress the last venire drawn for appellant's trial.

The court denied appellant's re-filed motion for production of the jury roll of Coffee County, Elba Division, for the purpose of enabling appellant's attorneys to photostate the same.

We think the motions to produce the jury rolls made in connection with the motion to quash the indictment in Houston County, and the same motion made in Coffee County in connection with the motion to suppress the venire summoned to try the appellant, may well be treated together.

In the hearings on the respective motions, the appellant failed to introduce any evidence tending to show that negroes had been systematically excluded from the jury rolls either in Houston or Coffee Counties. The evidence offered by the state tended to show that negroes had not been so excluded.

In fact in the hearing in Coffee County, the entire jury commission was present in court, and the District Attorney announced their presence, and that the jury roll and jury box would be made available to appellant's attorneys in open court.

The court stated that the attorneys for the appellant would be given full opportunity to examine the jury roll, and examine the jury commissioners, and the attorneys would be given the opportunity to examine the jury roll 'as long as you want to examine it in open court with us here.' The court then declared a recess and turned the jury roll over to the appellant's attorneys.

It was stipulated that there was no way to tell from the jury roll or jury cards whether a citizen was white or colored, other than from the personal knowledge of the jury commissioners.

The jury commissioners were examined along this line, the results of their testimony being heretofore set out above.

Section 20, Title 30, Code of Alabama 1940, provides, among other things that:

'* * * The jury roll shall be kept securely and for the use of the jury commission exclusively. It shall not be inspected by anyone except the members of the commission or by the clerk of the commission upon the authority of the commission, unless under an order of the judge of the circuit court or other court of record having jurisdiction.'

The jury roll is in no sense a public record intended to be exposed either to the general public or to those interested in the personnel of future juries by reason of their interest in pending or anticipated litigation. Otherwise, 'serious evils in the administration of justice by jury trial, is hardly open...