Jolly v. State, 6 Div. 586
Decision Date | 06 October 1981 |
Docket Number | 6 Div. 586 |
Parties | Andre Bernard JOLLY v. STATE. |
Court | Alabama Court of Criminal Appeals |
David E. Hampe, Jr., Birmingham, for appellant.
Charles A. Graddick, Atty. Gen. and Helen P. Nelson, Asst. Atty. Gen., for appellee.
The defendant was indicted and convicted for robbery in the first degree. Sentence was ten years' imprisonment. Two issues are presented on appeal.
The defendant contends that the trial judge violated Section 12-16-9(b), Alabama Code 1975, by asking the defendant in the hearing of the jury whether he would consent to a separation of the jury pending the trial. No objection was made at trial and this issue is raised for the first time on appeal. Consequently, nothing has been preserved for review. Fuller v. State, 365 So.2d 1010 (Ala.Cr.App.1978), cert. denied, 365 So.2d 1013 (Ala.1979).
Additionally, the record does not affirmatively show that the matter of the separation was in fact mentioned before the jury. Where the record on appeal is silent, it will be presumed that what ought to have been done was not only done, but was rightly done. Robertson v. State, 29 Ala.App. 399, 197 So. 73, cert. denied, 240 Ala. 51, 197 So. 75 (1940).
Moreover, a supplemental record filed pursuant to Rule 10(f) A.R.A.P. reveals that the jury venire was not present when the trial judge obtained the defendant's consent to the separation.
The rule is that it is error to reopen the case to allow either party to supply additional evidence after the case has been submitted to the jury. Harris v. State, 371 So.2d 979 (Ala.Cr.App.), cert. denied, 371 So.2d 984 (Ala.1979). Section 15-14-4, Code of Alabama 1975.
Technically, the trial judge should not have allowed the photographic negative to be inspected by the jury because during the trial of the cause he had sustained defense counsel's objection to its admission. However, technical errors, not affecting the substantial rights of the defendant, must be disregarded and cannot form the basis on which to reverse a conviction. Bryson v. State, 264 Ala. 111, 84 So.2d 785 (1956); Carlisle v. State, 371 So.2d 975 (Ala.Cr.App.1979).
Where real or demonstrative evidence has not been formally introduced in evidence, the fact that it has been used in connection with the giving of testimony makes it evidence in the case and proper to go before the jury in its deliberations. Smith v. State, 344 So.2d 1239, 1241 (Ala.Cr.App.), cert. denied, Ex parte Smith, 344 So.2d 1243 (Ala.1977); C. Gamble, McElroy's Alabama Evidence, Section 123.01(6) (3rd ed. 1977).
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