Miles v. State

• Decision Date: 07 October 1954
• Docket Number: 3 Div. 682
• Citation: 261 Ala. 670,75 So.2d 479
• Parties: Willie MILES v. STATE of Alabama.
• Court: Alabama Supreme Court

Page 479

75 So.2d 479

261 Ala. 670

Willie MILES v. STATE of Alabama.

3 Div. 682.

Supreme Court of Alabama.

Oct. 7, 1954.

Rehearing Denied Nov. 11, 1954.

B. E. Jones and Robert H. Jones, Evergreen, for appellant.

Si Garrett, Atty. Gen., and Paul T. Gish, Jr., Asst. Atty. Gen., for the State.

CLAYTON, Justice.

This case is before us by virtue of the Automatic Appeal Statute, §§ 382(1) to 382(13), Tit. 15, Code of Alabama, 1940, Cum.Pocket Part.

Appellant's counsel have furnished us with an excellent brief which discusses every point worthy of consideration. Under our view of the case, however, only one of these need be treated in this opinion, the others relating to matters either within the discretion of the trial court, or which are unlikely to arise on another trial.

Upon being called on the morning after the alleged offense, the sheriff and his brother, the chief deputy, began an investigation. Soon they were joined in the investigation by Sergeant Melton and another member of the Highway Patrol. As a result of their investigation, the defendant was arrested and committed to jail. As a further result of their activity, an alleged confession was obtained from the defendant at his home where he was arrested. It is undisputed that they caused the defendant to remove all his clothing. The defendant's testimony was that he was beaten and otherwise mistreated, by two of the officers in order to coerce this confession. The sheriff and Sergeant Melton testified that no coercion, violence, force or mistreatment of any kind was imposed upon the accused. The sheriff made the entire investigation of the case, was the chief actor in discovering and bringing into court the evidence upon which the accused was indicted and convicted, and in addition was the principal witness against the accused other than the victim of the alleged offense. The highway patrolman was also a witness.

Defendant's motion for a mistrial before the case was submitted to the jury, and defendant's motion for new trial after conviction and sentence, in addition to other grounds, assigned the following state of facts, as set out in motion for new trial:

'14. For that John Brock, who is the Sheriff of Conecuh County, and who is the person who investigated the alleged offense and secured witnesses for the State, and who was one of the most important witnesses for the State in securing a conviction, was in charge of the jury during the noon recess, took the jury downtown to a cafe, and ate with them, and was in charge of said jury out of the presence of the Court.

'15. For that John Brock, who is the Sheriff of Conecuh County, was the person in charge of the investigation of the alleged offense, was the person who arrested the defendant, and was one of the persons to whom the first alleged confession was made, and was the principal witness as to the confessions of the defendant, was in charge of the jury out of the presence of the Court during the noon recess when the case was on trial, took the jury to a restaurant in Evergreen and ate with them.

'16. For that John Brock, who is the Sheriff of Conecuh County, took with him his brother, James Brock, who is the Deputy Sheriff, to investigate the alleged offense, that the said John Brock arrested the defendant, that the said John Brock then called for assistance from the Highway Patrol, and Tom Melton, who is a Sergeant of the Highway Patrol, and Captain Mitchell, who is Captain with the Highway Patrol, went to the home of the defendant at the request of the Sheriff; that the said John Brock, as Sheriff, and Tom Melton and Captain Mitchell, as members of the Highway Patrol, had the defendant under arrest, had him in the car with all three of said officers who were armed when he made his first alleged confession; the said John Brock was the principal witness for the State as to said confession, and the said Tom Melton was also a material witness for the State; that during the noon recess on the day the defendant was being tried, the said John Brock, the Sheriff, the said James Brock, a Deputy Sheriff who had assisted in the investigation, and the said Tom Melton were the three persons in charge of the jury; the said three persons took the jury to a restaurant in Evergreen, Alabama, away from the Courthouse and out of the presence of the Court, and ate with the jury, and the said John Brock and Tom Melton were material witnesses for the State in this case.'

Our leading case of Oliver v. State, 232 Ala. 5, 166 So. 615, 617, concurred in by all the Justices, quotes from the case of Owens v. State of Florida, 68 Fla. 154, 159-160, 67 So. 39, 40, Ann.Cas.1917B, 252, and cases from other jurisdictions and contains so much of our law on this subject that the opinion in that case, so far as here applicable is quoted:

'It is established that in their deliberation the jury should be separated from and uninfluenced by the outside world. Any misconduct that might influence the jury, affect the verdict rendered or the punishment fixed, is a cause for a new trial. The test of vitiating influence upon a jury authorizing a new trial is not whether it did influence the jury to act without the evidence, but whether it might have unlawfully influenced the jury in the verdict returned, as to its nature, character, or degree, or the amount and extent of the punishment fixed by the jury within the statute. The authorities on this subject are collected in Roan v. State, 225 Ala. 428, 435, 143 So. 454; Leith v. State, 206 Ala. 439, 443, 444, 90 So. 687; Lakey v. State, 206 Ala. 180, 182, 89 So. 605.

'The Coroner Enslen, who has been active in investigating the case, procuring witnesses, causing the defendant's arrest, testified as to material facts and should not have been permitted by the sheriff to have charge of the jury and to remain with them during much of their deliberation. As to this conduct, the state did not overcome the presumption of injury that entered into the verdict rendered by reason of the presence of such witness. Roan v. State, supra; Aylward v. State, 216 Ala. 218 113 So. 22; Satterfield v. State, 212 Ala. 349, 102 So. 691; Lowery v. State, 23 Ala.App. 191, 122 So. 603; Taylor v. State, 18 Ala.App. 466, 93 So. 78.

'Each case is to be judged by its particular facts. Bell v. State, 227 Ala. 254, 149 So. 687. The association of this witness (Enslen) as special bailiff in control of the jury during the trial and its deliberations, furnished opportunity for ingratiating himself in the minds of the individual jurors, and for unduly emphasizing his testimony given in that case, causing it to affect and enter into the verdict rendered. His constant presence with the jury no doubt had bearing upon the case, though he and the jurors testified that he had not spoken to any individual juror about the evidence in the case or about the defendant. The injury which resulted was no doubt unconsciously brought about, but was none the less real or effective.

'In a case very much like this case, Owens v. State of Florida, 68 Fla. 154, 159-160, 67 So. 39, 40, Ann.Cas.1917B, 252, the Chief Justice observed: 'It is sufficient to say that while it is not affirmatively made to appear that either Beach or Cellon did actually attempt to influence the jury in any way, and, as a matter of fact each one positively denies having done so, yet it plainly appears that each one had the opportunity of so doing. It was manifestly improper for Beach, who was a material witness for the prosecution, to have charge of or to be with the jury. See People v. Knapp, 42 Mich. 267, 3 N.W. 927, 36 Am.Rep. 438, and appended note. We would also refer to Madden v. State, 1 Kan. 340; State v. Snyder, 20 Kan. 306; Gainey v. People, 97 Ill. 270, 37 Am.Rep. 109; Rickard v. State, 74 Ind. 275. We shall not undertake to express any opinion concerning the evidence. Suffice it to say that there is a conflict therein upon material points. This being true, and it plainly appearing that some of the deputies of the sheriff had acted in an irregular and improper manner while in charge of the jury and it would seem, were over zealous for the prosecution, we think that the ends of justice would be best subserved by another trial. As was said in Buxton v. State, 89 Tenn. 216, text 217, 14 S.W. 480: 'An impartial jury, selected and kept free from all outside or improper influences, has always been regarded by our courts as necessary to a fair and impartial trial.''

'For the action of allowing the jury to be in charge of the witness Enslen and his immediate presence and association with the jury during the trial, a new trial should be and is hereby granted. The judgment of the circuit court is reversed, and the cause remanded.'

The foregoing decision is quoted in part in footnote 2, 23 C.J.S., Criminal Law, § 1352, p. 1013.

In the case of Aylward v. State, 216 Ala. 218, 221, 113 So. 22, 24, the sheriff had a private conversation with one of the jurors. Although the sheriff testified that the conversation was innocuous, the case was reversed. The opinion of this court, by Sayre, J., concluded with the following:

'All such communications with jurors are highly improper and reprehensible. Kansas City, M. & B. R. R. Co. v. Phillips, 98 Ala. 159, 13 So. 65, where the subject is considered at length. The sheriff was in authority; it is safe to assume that in the mind of the juror he represented the state, the law; the court is of opinion that the stated conduct on the part of the sheriff may have influenced the verdict, that the burden of satisfactory explanation--that the verdict was not influenced by the matter under consideration--was put upon the prosecution, and that the explanation offered is unsatisfactory to a decree, and that on this ground, if no other, the defendant's motion for a new trial should have been granted. 17 Am. & Eng.Encyc. 1205.'

Our Court of Appeals in reversing Taylor v. State, 18 Ala.App. 466, 93 So. 78, 79, on account of action of...