Martin v. State

Citation22 Ala.App. 154,113 So. 602
Decision Date19 January 1926
Docket Number4 Div. 142.
PartiesMARTIN v. STATE. [*]
CourtAlabama Court of Appeals

Rehearing Denied June 29, 1926

Affirmed on Mandate June 30, 1927

Appeal from Circuit Court, Russell County; J.S. Williams, Judge.

C.O Martin was convicted of manslaughter in the first degree, and he appeals. Affirmed.

Certiorari granted by Supreme Court in Martin v. State, 113 So 602.

Frank M. de Graffenried, of Seale, for appellant.

Harwell G. Davis, Atty. Gen., and Chas. H. Brown, Asst. Atty. Gen for the State.

BRICKEN P.J.

In the case at bar we need not concern ourselves with the rulings made by the court on the main trial of this appellant, as it clearly appears that such trial proceeded throughout without error of a reversible nature. Moreover, it does not appear that insistence is made by appellant's counsel of reversible error in any of the rulings of the court invoked upon the main trial.

It is strenuously insisted, however, that the court should have granted a new trial to defendant upon the showing made relative to this matter, and that in overruling or denying said motion the court committed grievous and prejudicial error, and that such error must of necessity effect a reversal of the judgment of conviction from which this appeal was taken.

The motion for a new trial was predicated upon three separate grounds: (1) Irregularity in the proceedings of the jury, and this was based upon the alleged statement of A.I. Simpson, a juror, which statement was made before the trial of the case against the defendant, and which statement was in substance as follows:

"That Clifford O. Martin should be punished, and that if he (the said A.I. Simpson) was on the jury before whom said case was tried, he would vote for the conviction of the said Clifford O. Martin."

This ground was based also upon the alleged statement of the juror J. Ed Dudley to the jury, from his own knowledge, and not from any evidence adduced from the trial of said case, and which statement was in substance as follows:

"That Harvey Mathews did not meet the defendant in Columbus, Ga., at Spano's restaurant; that he, the said J. Ed Dudley, saw the defendant in Columbus, Ga., on the day of the homicide; and that the defendant was so drunk as to be unable to take care of himself; that Harvey Mathews came to a residence in Columbus, Ga., and carried Clifford O. Martin away, and that it would have been impossible for them to have reached Seale, Ala., on the afternoon of Sunday, March 29, at the time testified to by the defendant and the said Harvey Mathews."

(2) Misconduct of the jury in not promptly reporting to the court the conduct of the said J. Ed Dudley, juror, in making the statement hereinabove quoted to the jury, so that a mistrial could then have been entered by the court, and the jury discharged. (3) Newly discovered evidence that the defendant did not, and, with reasonable diligence, could not, have discovered and produced at the trial of his case.

We shall pretermit a discussion of the third ground of the motion, above set out. It relates to newly discovered evidence, but we note that the evidence referred to is merely cumulative, and, where this is true, a new trial will not be granted on the ground of newly discovered evidence. Geter v. Central Coal Co., 149 Ala. 578, 43 So. 367.

We have carefully considered the evidence introduced on the motion for new trial as to grounds 1 and 2 of the motion. There was some direct evidence to support ground 1 of the motion, and ground 2 thereof was proven without dispute. We are of the opinion that under either or both of said grounds of the motion the court should have set aside the verdict and granted defendant a new trial, and failing to do so is error, necessitating the reversal of the judgment appealed from.

As to ground 2, the statute (Code 1923, § 5634) expressly provides: If a juror has personal knowledge respecting any fact in controversy, he must declare it in open court during the trial; and if, during the retirement of the jury, a juror declares a fact as of his own knowledge, which could be evidence in the cause, the jury must forthwith return into court, and such juror must in either case be sworn and examined as a witness in the presence of the parties. As stated, the undisputed evidence on the motion for new trial discloses that the statements complained of were made to the jury by Juror Dudley during the deliberation of the jury on this case. The requirements of the statute above referred to were not complied with.

Section 6, art. 1, of the Constitution of Alabama (our Bill of Rights), provides that in all prosecutions by indictment the accused has a right to a speedy, public trial by an impartial jury of the county or district in which the event was committed. And it is further provided by said section that a defendant has the right to be confronted by the witnesses against him. To sanction, to approve, or to countenance the verdict of a jury returned after the statement attributed to the said J. Ed. Dudley, juror, made in the absence of the defendant to the jury, is to ignore the constitutional provision which all courts and judges are under the duty to enforce. De Bardeleben v. State, 16 Ala.App. 367, 77 So. 979.

The Legislature of Alabama, through various Code provisions, has endeavored to carry these constitutional provisions into effect. Section 8608 of the Code requires each petit juror to take an oath to render a true verdict according to the evidence. A juror, under the provision of section 8610 of the Code, may be challenged for cause if he has an interest in the conviction or acquittal of the defendant, or if he has a fixed opinion as to the guilt or innocence of the defendant, or if he is a witness for the other party.

These constitutional and statutory provisions would be emasculated and rendered meaningless, if by misrepresentation, false statements, or corruption a juror qualifies himself as competent, and then, after the jury retires, he takes advantage of the security and the protection of the jury room to influence the verdict. To hold that this may be done is an insult to common decency, and is an invitation to the degradation of jury verdicts and to a destruction of public confidence in the justice and impartiality of jury trials.

A jury may legally consider only the evidence as adduced from the witness stand; also the law of the case as charged to them by the court. Everything else is extraneous.

The statement of extraneous facts made by said juror was highly prejudicial to the defendant upon trial, and the proof of this improper conduct was shown by the testimony, and not denied. Following the well-settled rule governing in a question of this kind, we must perforce hold that the court committed reversible error in not granting the motion for a new trial. The rule referred to is stated in Driver v. Pate, 16 Ala.App. 418, 78 So. 412, and cases there cited.

Reversed and remanded.

On Rehearing.

The indictment against this appellant was presented by a grand jury, convened in special session, of the circuit court of Russell county, and was returned and filed in said court on the 31st day of March, 1925. The defendant was arraigned upon the indictment, and interposed his plea of "not guilty" on April 1, 1925, and the cause was set for trial upon April 3, 1925, upon which day the case was tried and determined, resulting in a verdict by the jury of guilty of manslaughter in the first degree, and the punishment of the defendant was fixed by the jury at ten years' imprisonment in the penitentiary. A full and complete judgment of conviction was pronounced and entered accordingly on that date.

On April 30, 1925, the defendant made and entered a motion for a new trial, which motion was, by the court, continued for hearing to May 18, 1925. It appears from the record before us that said motion was heard and ruled upon by the court on May 18, 1925, and the court thereupon pronounced and caused to be entered the following judgment on the motion:

"In the Circuit Court of Russell County, Ala.
"The State v. Cliff Martin.
"May 18, 1925, now comes Cliff Martin, the defendant, and comes also the state of Alabama by T.M. Patterson, its solicitor, and the motion of the defendant for a new trial filed in this case on the 1st day of May, 1925, is heard and considered by the court. The defendant, Cliff Martin, offers in support of his motion for a new trial, without objections, the affidavits attached to said motion, together with all of the evidence offered upon the trial of said case, and the testimony now taken upon the hearing of said motion ore tenus before the judge of the court upon this hearing.
"And said motion and the evidence offered in support thereof and against the same being now heard and considered by the court, it is ordered and adjudged that said motion be, and the same is, in all things overruled and denied, and to this action of the court the defendant duly and legally excepts.
"Thereupon the said Cliff Martin, being now in open court, and having reserved certain exceptions to the ruling of the court on the law and the evidence upon the trial in chief, and also having reserved certain exceptions to the ruling of the court on the law and the evidence upon the hearing of his motion for a new trial, and having also reserved certain exceptions to the judgment of the court upon his motion for a new trial, now gives notice in writing of an appeal from the judgment of the court made and entered upon his trial in chief on the 3d day of April, 1925, and from the judgment of the court upon his motion for a new trial made and entered in this cause on this 18th day of May, 1925, and his appeal bond is assessed in the sum of $7,500 and
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    ...or power whatever to change or modify or suspend the effect or operation of its mandates or its prohibitions.’ ”Martin v. State, 22 Ala.App. 154, 158, 113 So. 602, 606 (1926) (emphasis added), reversed on other grounds, 216 Ala. 160, 113 So. 602 (1926). These principles compel me to dissent......
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