Leith v. State

• Decision Date: 30 June 1921
• Docket Number: 6 Div. 455
• Citation: 206 Ala. 439,90 So. 687
• Parties: LEITH v. STATE.
• Court: Alabama Supreme Court

90 So. 687

206 Ala. 439

LEITH v. STATE.

6 Div. 455

Supreme Court of Alabama

June 30, 1921

Rehearing Denied Oct. 13, 1921

Appeal from Circuit Court, Walker County; J.J. Curtis, Judge.

Byron Leith was convicted of murder in the first degree, sentenced to life imprisonment, and he appealed.Affirmed.

ThomasGardner, and Miller, JJ., dissenting.

After setting forth the affidavits filed in connection with the motion for new trial, both for the defendant and for the state, together with the opinion of Judge Sowell on the habeas corpus proceedings of Byron Leith, and setting out specifically the objections interposed thereto, both by the state and the defendant, the opinion of Judge J.J. Curtis directed to be set out, is as follows:

On consideration of all the affidavits on behalf of the movant and the state, the court is of the opinion that the opinion of Judge Sowell complained of went into the hands of the jury without the consent or knowledge of the prosecution or defense, and that the rule in granting motions for new trials, that, where the misconduct of the prevailing party causes any improper matter to get before the jury, that same will be set aside, without regard to the merits, cannot prevail.But the prosecution and defense being innocent of placing the paper before the jury, or it inadvertently getting before them, the burden will rest on the movant to show that harm was done him.

The court is not passing on whether the paper itself was one calculated to prejudice the jury.The decision undoubtedly states the law, against which defendant could not complain but that part of the decision which says on the evidence before the courthe was not ready to say he would disturb a verdict might mislead a jury; however, no opinion is expressed by the judge as to the defendant's guilt.

The defendant, by the introduction of the affidavits and order of Judge Sowell, seeks to raise by presumption that injury was done, because the court would be authorized to presume that the jury read it, and, if such paper as would injure the defendant, that he was thereby injured, and with this the movant rests his case on the motion.The defendant thereupon introduces the affidavit of 11 of the 12 jurymen, who state that before they found this paper they had agreed on the guilt of the defendant, and determined him guilty of murder in the first degree; that they went to supper, and after they came back they found the decision of Judge Sowell, and then fixed the punishment.Inasmuch as the punishment was fixed at the lowest punishment for that degree of the crime, then no injury could have resulted if the jurors so testifying tell the truth.In rebuttal of these affidavits, the defendant files one from Geo. H. Meyer, which contradicts what he says in the affidavit filed from him by the state, and filed one from Arthur Lawson, a juror, which the state does not file one from.On this question the great preponderance of the testimony is that the jury first determined that the defendant was guilty of murder in the first degree, and afterwards they found the decision of Judge Sowell.On this the court finds that there was no injury done the defendant by said paper being before the jury.In considering these affidavits, the court has tried to follow the rule of law in this state that the affidavit of jurors as to what occurred before them cannot be considered to impeach their verdict.Continental Casualty Co. v. Ogburn,186 Ala. 398, at page 403, 64 So. 619;Birmingham Ry., Light & P. Co. v. Moore,148 Ala. 115, at pages 130, 131, 42 So. 1024;Clay v. City Council of Montgomery,102 Ala. 297, 14 So. 646;City of Eufaula v. Speight,121 Ala. 613, 25 So. 1009.Finney v. Newson,203 Ala. 191, 82 So. 441;Hall's Case, 134 Ala. 90, 32 So. 750.But when a verdict of the jury is sought to be impeached, the affidavits of the jurors as to what occurred, especially as to extrinsic matters, are admissible to uphold the verdict, and the court must consider them.Birmingham R., L. & P. Co. v. Moore,148 Ala. 115-131, 42 So. 1024;Birmingham Ry., L. & Power Co. v. Clemens,142 Ala. 160, 37 So. 925;Clay v. City Council, Montgomery,102 Ala. 297, 14 So. 646;City of Eufaula v. Speight,121 Ala. 613, 25 So. 1009;Cobb v. Hand,12 Ala.App. 461, 68 So. 541;Birmingham Ry., L. & Power Co. v. Mason,144 Ala. 387, 39 So. 590, 6 Ann.Cas. 929;L. & N.R.R. v. Sides,129 Ala. 399, 29 So. 798.Competent to show by jury that they did not read a paper that was before them improperly.L. & N.R.R. Co. v. Sides,129 Ala. 399, 29 So. 798;Kates Transfer Co. v. Klassen,6 Ala.App. 301, 59 So. 355;Caldwell v. State,203 Ala. 412, 84 So. 272;Birmingham Ry., L. & P. Co. v. Moore,148 Ala. 115, 129-131, 42 So. 1024.

What a juror thought, or why he agreed to a verdict, is not permissible to impeach the verdict.Van Tinder v. B.R., L. & P. Co.,202 Ala. 474, 80 So. 858;Harper v. State,16 Ala.App. 153, 75 So. 829;City of Eufaula v. Speight,121 Ala. 613, 25 So. 1009.

From the foregoing it results that it is the order and judgment of the court that motion for a new trial by the defendant be and the same is hereby overruled.

The defendant duly excepted to such ruling.The other facts sufficiently appear.

M.L. Leith, Bankhead & Bankhead, Ray & Cooner, and L.D. Gray, all of Jasper, for appellant.

Harwell G. Davis, Atty. Gen., and J.M. Pennington and Ernest Lacy, both of Jasper, for the State.

THOMAS J.

Defendant was convicted of murder in the first degree, and his punishment fixed by the jury at imprisonment for life.

The bill of exceptions disclosed that on the trial a juror, Mr. Castleberry, was asked by the court if he had a fixed opinion as to the guilt or innocence of the defendant, and answered in the affirmative, and, being asked, "Is it so fixed that it would not be removed after you heard the testimony?" answered, "Yes, sir."The court announced that the juror was subject to challenge for cause.The solicitor said the state would waive the challenge.The defendant's attorney stated that the defendant would waive the challenge.Thereupon the court, of its own motion, excused the juror, and requested him to stand aside, and the defendant duly excepted.The same preliminary question to and answer by the juror Mr. Farris were given:

"The Court: Is your opinion so fixed that you could not weigh the testimony without being biased?[ The answer was in the affirmative.]

"Q.Youdo not think the testimony could be received and weighed by you without being biased?A.No, sir.

"Q.Youstate that you do have a fixed opinion as to the defendant's guilt or innocence?A.Yes, sir."

The court announced that the juror was subject to challenge for cause; the state and the defendant waived the challenge; the juror was excused by the court, and defendant"duly excepted to the court's action in excusing said juror and refused to allow the name of said juror to be placed on the list of the qualified jurors from which the jury trying this case was selected."

The jury system, as a time-honored institution of the common law, and under the Constitutions and the statutes, is dependent upon a fair trial by jurors without bias or prejudice for or against either party litigant or the state or the defendant.Our statutes have been enacted to safeguard this right which can only be secured by unbiased jurors.Sovereign Camp v. Ward,196 Ala. 327, 71 So. 404;Calhoun County v. Watson,152 Ala. 554, 44 So. 702;L. & N.R.R. Co. v. Young,168 Ala. 551, 53 So. 213;Stennett v. City of Bessemer,154 Ala. 637, 45 So. 890.And it has been often held by this court that the right of neither party to a jury free from bias or interest is lost, or subjected to chance or peril, because a struck jury is demanded.L. & N.R.R. Co. v. Young, supra;Dothard v. Denson,72 Ala. 541;Morris v. McClellan,169 Ala. 90, 53 So. 155;Steed v. Knowles,97 Ala. 573, 578, 12 So. 75;Davis v. Hunter,7 Ala. 135.

The case of L. & N.R.R. Co. v. Young, supra, contains the statement:

" 'The statute prescribing the cases for which a person, drawn and proposed as a juror, may be challenged, was not intended to take away from the court the discretionary power to excuse any person who appears to the court to be unfit to serve on the jury,' though this power 'should be exercised consistently with the right of the accused to have a jury selected from the list served on him, as far as practicable.There must be a cause.'Long v. State,86 Ala. 36, 40, 5 So. 443;Scott v. State,133 Ala. 112, 115, 32 So. 623;Williams v. State,144 Ala. 14, 17, 40 So. 405.The Long Case and the Scott Case are based upon general principles, while the Williams Case rests upon section 5020 of the Code of 1896.

"Section 7280 of the Code of 1907 authorizes the court to excuse from service any person 'if he is disqualified or exempt, or for any other reasonable cause, to be determined by the court.'It is true that this section appears in the Criminal Code, but it has been applied by this court in civil cases.Calhoun County v. Watson, 152 Ala. 554, 560, 44 So. 702, 704."

See, also, Code, § 7279;White v. State,201 Ala. 387, 78 So. 449;Zininam v. State,186 Ala. 9, 13, 65 So. 56;Nail v. State,12 Ala.App. 64, 67 So. 752.

So, also, in Morris v. McClellan, supra, the observation is made:

" 'The law, common and statutory, is careful to exclude from the jury box a juror who has, in any degree, prejudged the issue he is to try; or who is under any bias, or want of impartiality, which would prevent him from hearing, trying, and determining fairly.'If a juror has acted in a previous case, whether the parties are identical or not, but which involved the controverted facts in the present case, whether there was a verdict or a mistrial, he cannot be

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