King v. State, 6 Div. 49

• Decision Date: 14 March 1957
• Docket Number: 6 Div. 49
• Citation: 95 So.2d 816,266 Ala. 232
• Parties: John Wesley KING v. STATE of Alabama.
• Court: Alabama Supreme Court

Page 816

95 So.2d 816

266 Ala. 232

John Wesley KING v. STATE of Alabama.

6 Div. 49.

Supreme Court of Alabama.

March 14, 1957.

Rehearing Denied June 20, 1957.

Rogers, Howard & Redden, Birmingham, for appellant.

John Patterson, Atty. Gen., and Paul T. Gish, Jr., Asst. Atty. Gen., for State.

The following requested charge (pertinently similar to charges 18 and Q) was refused to defendant:

'M. The Court charges the jury that if they do not believe the evidence of the witness Clint Townley, and if they further find that there is no other evidence in the case connecting the defendant with the crime charged, then the defendant cannot be convicted.'

STAKELY, Justice.

John Wesley King (appellant) was indicted for the offense of murder in the first degree. Trial was had on his plea of not guilty. The jury returned a verdict of guilty and fixed the punishment at imprisonment for life in the penitentiary. A motion for a new trial was overruled. The court sentenced the appellant accordingly and from such judgment and sentence this appeal has come to this court.

John Wesley King and the deceased, Jim King, were brothers. They were both bachelors and lived together in May 1955 and for several years prior thereto near the Hendricks Community about ten miles northeast of Oneonta in Blount County, Alabama. Their home was near the Little Warrior River. They lived alone. The deceased was about seventy-nine years of age.

One Clint Townley, according to his testimony, was an eye witness to the murder. Clint Townley testified that he had spent the night at the King home about a week before Jim King met his death. On the day of his death he went to the King home about one o'clock in the afternoon. Wes King was not there when he arrived but Jim King was. Wes King came in and Wes King and Clint Townley began drinking. Jim came in the room where they were drinking and began to remonstrate with Wes King about the drinking. Jim King then turned and picked up some fishing poles. 'We could see him from the window there going down towards the river there, with them fishing poles.'

Clint Townley further testified that after Jim King left Wes King said, "I'm going to have to do something or other. I'm going to put Jim in the asylum or do something or other with him. He is running me crazy the way he is doing." After a while Wes King said, "Let's go out and walk around. Does it suit you? and I told him yes, it suited me, and we'd get out and get a little exercise if it suited him.' After a while Wes King said, "Let's walk down here where Jim went to on the creek and see if he is catching any fish. * * * I know there aint no fish down there. * * * He aint catching no fish. Let's just go by where he's at down there.' I told him 'OK.' We walked on down there, walked to the creek and Jim was sitting there on the bank of the creek. So Wes asked him, 'Well, you catching a lot of these fish?' Jim got up and said, 'No, I aint caught no fish. * * * And Wes said, 'Well, don't you know if you weren't crazy you wouldn't be down here in this swift water a-trying to catch fish, knowing there aint none down here nohow.''

'Well, Jim turned around and said, 'I just left the house to get away from that drunk mess and you followed me down here.' And Jim said, 'It's going to be stopped, you staying drunk over here all the time, * * *.' So directly, Jim just turned around and walked back down there where his poles was at. I don't know whether he sat down. He either squatted down or sat down. * * * About the time he got squatted or sat down there, why, Wes just retched over there and got him a pole and hit him right across the head with it, and knocked him over there. And Jim he went to struggling and kicking. I thought he had killed him there. So he just took and run his hands in both of his pockets there and got a billfold out of Jim's pocket and put it in his pocket. Then he just got a-hold of him--it was right on the bank of the creek there--and he just rolled him over and pushing him in, in that swift water there.'

The coroner testified that deceased had a fractured skull and other head and face injuries which caused his death.

The testimony on behalf of the appellant tended to show that the appellant was not at home at the time of his brother's death and that Clint Townley was seen by people in the community that afternoon. There was testimony that Townley left the community with money in his pocket and that his clothes were wet when he was seen leaving.

There was testimony tending to show the bad character of both the appellant and Clint Townley. A number of witnesses testified that they would not believe Townley on oath and there were other witnesses who testified they would not believe appellant on oath.

A searching party was formed by the people of the community on the night that the deceased failed to come home. His body was found in the stream a few feet from the bank near the spot where Townley testified that he was killed by the appellant. The clothes of Jim King were wet.

I. Before the jury returned its verdict the defendant made a motion to the court to withdraw the case from the jury and grant a mistrial. The ground assigned in support of the motion was that the jury had been separated during the trial of the case and after the testimony had all been taken. The court overruled the motion. The same proposition was raised by the appellant on his motion for a new trial, which the court overruled.

Testimony was taken by the court in connection with the separation of the jury. J. C. Carr testified that he was a Deputy Sheriff in Blount County and that he was acting as bailiff to the jury on the trial of the case and he was so acting the previous night when one of the jurors became sick. He contacted a doctor. The juror had had some medicine sent to him during the course of his service on the jury. The bailiff testified that he talked to the doctor and explained to him that Oris Martin, one of the jurors, was sick with a hemorrhage of the bowels. He further testified that the juror did not appear to be too sick. When he called the doctor the doctor called a doctor in Birmingham who advised that Oris Martin be carried to the hospital. Dr. Wittmeier was the local doctor and Dr. Lewis was the doctor in Birmingham. Sheriff Murray thereupon carried Oris Martin to the hospital. While Oris Martin was away the other jurors were kept together. Nobody talked to the other jurors or to Oris Martin. The hospital is about a mile or three-quarters of a mile from where the jurors were kept. Oris Martin spent the night at the hospital. J. C. Carr remained with the other jurors.

Roy Murray, the Sheriff, testified that he was informed the previous night that one of the jurors, Oris Martin, was sick and a doctor had ordered him carried to the hospital. Accordingly he carried Oris Martin to the Blount Memorial Hospital. At first there was difficulty in getting a bed for the patient. Finally, he spent the night in the emergency room. He, the sheriff, remained with the patient until a few minutes after midnight when he was relieved by Deputy Sheriff Shaviers. Dr. Wittmeier, the local doctor, was there and some nurses were there and the sister of the patient came to the hospital and brought him a clean pair of pajamas. The sheriff testified that during that time nobody talked to Oris Martin nor was the case discussed. While his sister came to the hospital, she did not go into the room.

The Deputy Sheriff J. L. Shaviers testified that he was called to the Blount Memorial Hospital about twelve o'clock the previous night and he saw Sheriff Murray and Oris Martin and Oris Martin was in the emergency room, where he spent the night. That he was present at all times from five minutes after twelve until 7:30 in the morning, that he stayed awake at all times and that no one talked to Oris Martin about the case. In answer to questions by the court Shaviers testified that no one talked to Oris Martin other than the doctor and the nurse and that he was relieved in the hospital the next morning at 7:30 by the Sheriff.

Roy Murray, the Sheriff, further testified that he brought Oris Martin back to the court house, that nobody talked with Oris Martin about the case and that he had no contact with any outsider.

Oris Martin testified that from the time he became ill on the evening of the trial until the morning when he was returned to the court house he had no contact with anyone except the doctor and the nurse and except that he had been in the continuous custody of the sheriff or his deputy and that the case had not been mentioned in his presence or hearing by anyone.

The court read into the record a statement to the effect that it was made known to the court by the county solicitor about 6:30 or 7:00 o'clock of the juror's illness. The court suggested to the county solicitor that he contact one of the attorneys for the defendant and acquaint him with the situation of the juror's illness and obtain his reaction to the juror going to the hospital with an officer. Mr. Jack Martin Bains, one of the attorneys for the defendant, was contacted by the county solicitor and stated that insofar as he was concerned, he would have no objection. Mr. Bains further stated to the county solicitor that he was not speaking for Mr. Kelton, who was the Chief Counsel for the defendant, and suggested that the solicitor contact Mr. Kelton.

There is no doubt that in Alabama a separation of the jury after the trial has been entered upon and before verdict, creates a ground for reversible error in favor of the defendant unless the State affirmatively shows that the defendant was not thereby injuriously affected. In other words, the separation of the jury does not establish an absolute right to have a mistrial declared or a new trial granted but prejudice must result therefrom in order for a new trial to be granted. The right of the defendant in this respect is only prima facie and when...