Payne v. State, 3 Div. 13.
| Decision Date | 26 January 1933 |
| Docket Number | 3 Div. 13. |
| Citation | 145 So. 650,226 Ala. 69 |
| Parties | PAYNE v. STATE. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Escambia County; F. W. Hare, Judge.
Willis Payne was convicted of murder in the first degree, and he appeals.
Reversed and remanded.
C. B Fuller, of Andalusia, for appellant.
Thos E. Knight, Jr., Atty Gen., for the State.
The trial court cannot be reversed for refusing to grant a change of venue. The bill of exceptions contains no evidence in support of the motion for a change. True, the motion had attached, as exhibits, purported copies of certain newspaper comments on the crime with which the defendant is charged but if these could be looked to as evidence, the same not appearing in the bill of exceptions, there was no proof offered to show the state of the public mind or that the defendant could not get a fair and impartial trial in Escambia county. Malloy v. State, 209 Ala. 219, 96 So. 57.
The trial court committed no reversible error in ruling upon the evidence.
The defendant's refused charges have been examined and considered, and those that are not faulty were sufficiently covered by the many given charges for the defendant or the oral charge of the court.
While the rule is not now so strict, as at common law, as to the separation of the jury, it is the present rule in felony cases, especially capital ones, that a separation of the jury, after the trial has been entered upon, and before verdict, creates a cause for reversible error in favor of the defendant, unless the state affirmatively shows that the defendant was not thereby injured. This is often done by showing that the separation was done with the consent of the court, and that those leaving the main body were accompanied by an officer, and, if they were communicated with by outsiders, it was in the presence of the officer, and did not relate to or have any bearing upon the case under consideration. Arnett v. State (Ala. Sup.) 141 So. 699; Butler v. State, 72 Ala. 179; Davis v. State, 209 Ala. 409, 96 So. 187; Thompson v. State, 23 Ala. App. 565, 129 So. 297.
Here the defendant was indicted and tried for a capital felony was convicted, and given the death penalty. After the jury was impaneled and the trial entered upon, the court recessed for the night, and the sheriff took the jury to the hotel, who, with him present, lodged there for the night. The sheriff and eleven jurors...
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Redus v. State
...seven rooms of a hotel at night, appellant's counsel cite Payne v. State, 226 Ala. 69, 145 So. 650; Butler v. State, 72 Ala. 179, 180. In the Payne case the and eleven jurors occupied three adjoining rooms in the hotel and the twelfth juror slept on a cot in the hall near the stairway, whic......
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...separation. Under the rule of all Alabama cases since 1915, the denial of the motion for a new trial was reversible error. Payne v. State, 226 Ala. 69, 145 So. 650; Harris v. State, 233 Ala. 196, 172 So. 347; Arnett v. State, 225 Ala. 8, 141 So. In Green v. State, 252 Ala. 513, 41 So.2d 566......
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...and being in charge of the jury. 70 Corpus Juris, § 245, p. 183.' The cases of Arnett v. State, 225 Ala. 8, 141 So. 699, and Payne v. State, 226 Ala. 69, 145 So. 650, were both cases in which separation of the jury was assigned as error, and for that reason are readily distinguished from th......
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