Knight v. State

• Decision Date: 21 June 1962
• Docket Number: 4 Div. 101
• Court: Alabama Supreme Court
• Parties: Ansley KNIGHT v. STATE of Alabama.

Page 899

142 So.2d 899

273 Ala. 480

Ansley KNIGHT v. STATE of Alabama.

4 Div. 101.

Supreme Court of Alabama.

June 21, 1962.

Allen Cook, Andalusia, for appellant.

MacDonald Gallion, Atty. Gen., and Geo. D. Mentz, Asst. Atty. Gen., for the State.

COLEMAN, Justice.

This is an automatic appeal from a conviction for murder in the first degree and sentence of death.

In bare outline, the evidence for the State tended to show that defendant entered a taxicab and rode out from town to a spot where defendant killed the taxi driver by stabbing him many times with an ice pick. The evidence for defendant tended to show self-defense.

I.

We are of opinion that the court did not err in overruling defendant's motion to postpone arraignment.

The record contains an order of the court filed September 5, 1961, setting arraignment for September 18, 1961. Defendant's motion shows that defendant's counsel examined the file on September 1o, 1961. Our conclusion is that defendant's counsel thus had five days' notice of the day set for arraignment.

In many cases this court has said that a motion for continuance is addressed to the sound discretion of the court and the exercise thereof is not subject to review except for gross abuse. We are not cited to any case where this court has held that the trial court erred to reversal in denying a continuance.

We are not persuaded that the record in the instant case shows such an abuse. The only matter in the record which supports the motion is the motion itself, which is sworn to. The statements in the motion to effect that defendant's counsel needed more time to investigate are 'conclusion of counsel, without any fact to show that the accused would be prejudiced' by denial of the motion. Morris v. State, 193 Ala. 1, 6, 68 So. 1003. See Peterson v. State, 231 Ala. 625, 166 So. 20.

II.

Defendant argues that the judgment must be reversed because part of the trial of defendant was conducted while the defendant was absent from the court.

The record discloses that defendant filed a motion to 're-qualify the jury venire' on the ground that defendant was absent from the courtroom at the time the court qualified the venire. Testimony was taken for and against the motion. The court denied the motion and defendant excepted.

After coviction, defendant moved for a new trial. The first and second grounds of that motion seek a new trial for:

'1. An error of law occurring at the trial and excepted to by the defendant occurred in that the court qualified the entire jury venire present for the week of court in the absence of the defendant, the defendant at the time being in a side room outside the sight of the court, and at a position he could not see the court, and such position of defendant was unknown to defendant(')s counsel and could not have been remedied by due diligence of defendant(')s counsel. At the time, the defendant was in custodia legis and not free on bail.

'2. An irregularity in the proce(e)ding of the court, or error at law occurring at the trial occurred in that after qualifying the venire as to the cases to be tried during the week, the court called for the prospective jurors who had excuses and desired to be relieved of jury duty to come forward, whereupon the court required defendant(')s counsel to speak up and say whether he had any objection to the jurors being excused, there being about to-wit 12, who sought to be excused, and defendant(')s counsel refused to participate in the proceedings as to excuse, whereupon, the court refused to excuse any of them because of the remark of defendant(')s counsel as to nonparticipation, and hence this large segment of the venire were immediately prejudiced against the defendant(')s counsel.'

The motion for new trial was overruled.

The transcript of testimony commences as follows:

'BE IT REMEMBERED: That this case came on to be tried in the Circuit Court of Covington County, Alabama, on the 25th day of September, 1961, before Hon. F. M. Smith, Judge of the 22nd Judicial Circuit, and a struck jury from the regular and special venire, and the following proceedings were had:

'After qualifying the jurors generally, the following took place:

'THE COURT: Gentlemen, this is very important and I want you to pay particular attention to these questions at this time: Now it will not in any way disqualify you, it is for information purposes only, but it is very important. I want to ask you at this time if any member of this jury venire has a fixed opinion against capital punishment? We will have to have your name.

'Marvin Lord.

'All right, is there any other member of the jury venire who has a fixed opinion against capital punishment?

'Adison T. Kervin.

'Is there anyone else? (None)

'Now the next question is also very important, gentlemen. Is there any member of this jury venire who would not convict on circumstantial evidence?

'William B. Owens.

'Anyone else who would not convict on circumstantial evidence?

'William M. Garrett and Adison T. Kervin.

'Anyone else? (None)

'Now, gentlemen, the next question has to do with excuses, but rather than hear your excuses at this time, I am going to ask you to be sworn again, and then after you have been sworn those who have excuses to offer as to why you should not serve on the jury during this week can remain standing and we will take up your excuses one at the time. The others may be seated after you are sworn.

'Hold up your right hand and be sworn again: You do solemnly swear or affirm that you will well and truly try all issues and execute all writs of inquiry which may be submitted to you during the present week and true verdicts render, so help you God.

'All right, you may be seated now, except those who have excuses to offer as to why you should not serve.

'The first gentleman who has an excuse to offer is Mr. Wiggins. Does the Defendant Helms agree to Mr. Wiggins being excused?

'MR. DONALD F. COLQUETT (Attorney for Lennie Oree Helms): Let the record show that the defendant Helms objects to the excusing of any jurors on this date and at this time and takes no further part in the discussion of the jurors and their excuses.

'THE COURT: What about the Defendant Knight?

'MR. COOK: The Defendant Knight submits the same statement, that the defendant chooses to take no part in the deliberation and objects to excusing any of them at this time.

'THE COURT: Gentlemen of the jury, those of you who have excuses to offer, these two defendants reuse to concur in you being excused, no matter what your excuse is, they have made a blanket statement that they won't agree to it, so I am going to have to ask you to serve. So you may be seated.

'Let me say this to you gentlemen who came up with excuses to offer to the Court, after Wednesday, if you have an excuse to offer as to the rest of the week, the Court will be glad to hear you Wednesday after the jury is struck in the second capital case. Any of you who have excuses to offer at that time.

'Now I am going to excuse you until 11 o'clock while we call the docket.'

As we understand the record, defendant was not in the courtroom while the foregoing proceedings took place.

In support of the motion, defendant's counsel testified that at the time the court qualified the venire for the week defendant was not in the 'courtroom proper' and if defendant was anywhere near, his presence was not known to his counsel; that defendant '* * * wasn't anywhere near the desk and had not been by me at any time during the morning * * *.'

The sheriff testified that throughout the qualification of the jurors, defendant '* * * was right in that room with the door open, standing behind some of the jurors. Chief Porter Moore was present with him and Olin Lawson, Deputy Sheriff'; that in the opinion of witness '20 or 25 feet' was the distance '* * * between the court bench here and the door there where the defendant was.'

Defendant testified that he could hear the court but could not understand what the court was saying.

Chief Porter Moore testified that he was standing near defendant; that he, Moore, was nearer to the court than defendant was, by 2 or 3 feet; and that he, the witness, was '* * * able to hear the qualification of the jury.'

This court has said:

'It is settled that the continuous presence of the defendant from arraignment to sentence is an essential part of the process provided for the trial of the defendant and without which the court has no jurisdiction to pronounce judgment against him. This principle was applied by the Court of Appeals in Chaney v. State, 56 So.2d 385, 386, where in reversing the judgment of conviction the court said: 'However the record shows that, instead of having the jury returned to the courtroom, the judge, court reporter, solicitor, and defendant's counsel went into the jury room where the court instructed the jury further.' See Lee v. State, 31 Ala.App. 91, 13 So.2d 583, certiorari denied 244 Ala. 401, 13 So.2d 590.' Neal v. State, 257 Ala. 496, 497, 59 So.2d 797, 798.

The State insists that because defendant could hear the court defendant was present in court, and in support of that contention relies heavily on Dozier v. State, 17 Ala.App. 609, 88 So. 54. The opinion in that case begins as follows:

'In brief, counsel for appellant insists that the trial court committed reversible error, in that, after the jury retired to consider its verdict, within a few minutes thereafter, the court went to the jury room with counsel for the state and defendant, and opened the door to the jury room, and, standing just within the door, and in the presence of counsel, and with the defendant sitting just outside the door and in hearing of what was said, gave to the jury the following instructions.' (17 Ala.App. 609, 88 So. 54)

The instructions thus given are then set out, but we omit them here because they have no bearing on the question at hand. The opinion continues as follows:

'This action of the court is not shown by the bill of exceptions,...