Mitchell v. State, 3 Div. 391.

• Decision Date: 03 June 1943
• Docket Number: 3 Div. 391.
• Citation: 14 So.2d 132,244 Ala. 503
• Parties: MITCHELL et al. v. STATE.
• Court: Alabama Supreme Court

14 So.2d 132

244 Ala. 503

MITCHELL et al. v. STATE.

3 Div. 391.

Supreme Court of Alabama

June 3, 1943

Rehearing Denied June 30, 1943.

Thomas & Thomas, of Montgomery, for appellant.

Wm N. McQueen, Acting Atty. Gen., and John O. Harris, Asst Atty. Gen., for the State.

BOULDIN Justice.

Horace Mitchell and David Mitchell, brothers, were jointly indicted with another for the murder of Curley Bray. The Mitchell brothers were tried together, were convicted of murder in the first degree, and their punishment fixed at death. The main question for review on this appeal arises upon a denial of a motion for new trial upon the ground of separation of the jury pending the trial.

Paragraph 9 of the motion for new trial reads: "9. Because the Court erred in the following manner: The trial of the above described case was begun on the 19th day of November, 1942 and at towit: 6:18 P. M. o'clock on November 19th, 1942 the Court was recessed until the following morning, November 20th, 1942; and the gentlemen on the jury were allowed by the Court to go separately their several ways. The twelve men were not required by the Court to stay together in the custody of the Bailiff of the Court or some other officer of said Court. That on the following morning, November 20th, 1942 at towit: 9:30 A. M. o'clock the Court resumed trial of said case and the twelve jurors had separated and gone home the night before or to places of their own choice unrestricted by the Court, and did return separately the following morning for the purpose of resuming trial of said cause, as is shown by affidavit of L. H. Brassell hereto attached and made a part hereof."

The supporting affidavit was to like effect.

The trial court, in course of an opinion dealing with the motion, made a special finding of facts, which we quote: "With reference to Paragraph 9 of the motion, which raises the point of the separation of the jury during the trial, the Court finds, as matter of fact, that when it was found impossible to complete the trial of the case on the same day upon which it was entered, it called to the Bench, in open court, during the trial, L. H. Brassell, the defendants' counsel, and the two defendants personally, and asked if there would be any objection to the jurors being allowed to separate until the trial was resumed the next day. Each defendant personally stated to the Court, upon his right to have the jury kept together being explained fully to him, that he did not object to the jury being allowed to separate, and defendants' counsel, L. H. Brassell, himself stated to the Court that he had no objection whatsoever and made no point on this, and thereupon the trial judge, having first had and secured the personal consent of each defendant and the consent of their counsel, permitted the jury to separate until the next morning, giving them the following instructions before they separated: 'Gentlemen, by agreement of each defendant here and of their counsel, the Court will not keep you locked up tonight, and you will be permitted to spend the night at your homes. You will not talk about this case in any way; you will not permit anyone to discuss it in your presence; none of the jurors must get off and discuss the case with any other member of the jury, and you must not be thinking about the case or attempting to make up your minds as to what verdict you will return in this case, because you are not authorized to do that until you have heard all the evidence in the case, both for the State and the defendants, the arguments of counsel and the charge of the Court; and do not go near the scene of the killing or attempt to find out anything about the facts of this case. The only evidence you can consider is such as comes from the witness stand, by witnesses sworn and testifying in your presence and subject to cross-examination by the opposite party.' Thereupon the Court, with the personal consent of the defendants and their counsel, permitted the jury to separate for the night, the Court being moved to permit this due to the fact that there are no accomodations either at the jail or at the court house to keep jurors together in the custody of an officer, and that, due to the crowded condition of the City at that time, it was impossible to secure hotel accomodations for the jurors overnight."

Dealing with the final expression in the foregoing excerpt, we observe: Title 30, § 97, Code of 1940, reads: "Whenever a jury is, by order of the court, kept together without separation during any night, or for an unusual length of time, it is the duty of the sheriff, with the approval of the court, at the expense of the county, to provide for the jurors, and the bailiffs or deputy sheriffs in charge of, or attending, said jury, suitable lodging and meals."

This statute recognizes there are cases in which the court should order the jury to be kept together, and places the duty and responsibility in providing lodging and meals for the jurors and their attending officers. The court has supervisory power in this regard.

This court has often considered cases in which the separation of the jury, pending the trial of felony cases, sometimes capital, was brought in question under varying conditions.

In Williams v. State, 45 Ala. 57, 64, the defendant was on trial for assault with intent to murder. Upon the close of the evidence and before argument was begun, the jurors were permitted to separate, without express consent or objection on the part of defendant or counsel. Said this court:

"Mr. Bishop, in his valuable work on Criminal Procedure, vol. 1, § 814, says: 'It is a doctrine prevailing almost everywhere in this country, that, in capital cases, the jury can never be permitted to leave the presence of the court, even on adjournment over night, except in charge of a sworn officer, and then they must be kept together.' Yet, he says, 'in South Carolina it is held to be within the discretion of the court, even in capital cases, to permit the jury to separate at the adjournment from day to day.' The like doctrine and practice appear to prevail in Connecticut. This author also says: 'In some of the States, the rule which forbids the court to permit a separation, extends to felonies not capital.'

"This we think the better and safer practice, and we recommend it as a rule for the government of the courts in this State." This case, as several later ones, arose when the ruling on a motion for new trial was not reviewable on appeal. It was held defendant was not entitled to a discharge because of separation of the jury. This court was stating the law, however, for the guidance of the trial courts.

In Robbins v. State, 49 Ala. 394, the accused was on trial for assault with intent to murder. Pending the trial, as the bill of exception states, "after the evidence was gone into, and after two witnesses had testified in the case, the court adjourned for dinner, and dispersed the jury, with the remark to them, 'that they must not talk about the case', without anything being said by the State or the defendant. When the court convened again after dinner, the defendant objected to being again put in jeopardy for the same offense; which objection the court overruled, and the defendant excepted." Said this court: "The separation of the jury, the prisoner not objecting, was a matter within the discretion of the court, and cannot be made the subject of revision on error. If it was irregular, or if any injury to the accused resulted from it, it is matter on which to ground an application for a new trial. We concur in all that is said on this point by Chief Justice Peck, in the case of Williams v. State, 45 Ala. 57. It is the safer practice, especially in cases of felonies, not to permit the jury to depart the presence of the court, even on an adjournment, unless attended by a sworn officer, and not to permit them to separate even then."

In Morgan v. State, 48 Ala. 65, 68, the accused was on trial for rape. While the trial was in progress the court adjourned for dinner, and the jury was "permitted by the court to separate and get their dinners and mix with the crowd who were in attendance upon the court, and this was done without the consent of defendant." Said this court: "The jury, after being impanelled and sworn, should not be permitted to separate, and 'mix with the crowd, who were in attendance on the court', without the consent of the defendant. But such a departure from the proper practice is not a matter for arrest of judgment, unless, perhaps, it is made a part of the record by bill of exceptions, but is grounds for a new trial."

In Butler v. State, 72 Ala. 179, a murder case, this court said: "The objection urged in this case for a new trial is, that during an adjournment, pending the trial, one or more of the impanelled jurors was permitted to absent himself from the body of the jury, unattended by an officer. It is not shown that these jurors conversed with any person or were conversed with, while they were so absent from their fellows. The implications from the bill of exceptions are, that such was not the case. The mere fact that jurors, pending a trial for felony, are not kept together in the care of an officer, is not necessarily ground for a new trial. In appellate courts which entertain jurisdiction on appeal from orders overruling such motions, a new trial is not a matter of course, from the mere fact that the jury had not been, all the while, kept together under the eye of the officer. Some courts hold that, prima facie, such irregularity calls for a new trial, and the onus is on the prosecution to show affirmatively that the jury had not been tampered with. Possibly, this is the safer and sounder rule. The inquiry is easily made, and a proper investigation had, in ...