Pogue v. State, 2 Div. 340

Citation429 So.2d 1159
Decision Date01 February 1983
Docket Number2 Div. 340
PartiesWilliam Carey POGUE v. STATE.
CourtAlabama Court of Criminal Appeals

Richard S. Jaffe and L. Dan Turberville, Birmingham, for appellant.

Charles A. Graddick, Atty. Gen. and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.

BOWEN, Judge.

The defendant was indicted and convicted for the attempted murder of William J. Akin. Sentence was twenty-one years' imprisonment. Three issues are presented on appeal.


The defendant argues that his conviction is due to be reversed because one juror was not a resident of the county in which he was tried.

After the jury returned its verdict, it was established that juror Willie Richardson was not a resident of Pickens County. Richardson testified that he had moved just over the county line into the adjoining county about three years ago. He had previously resided in Pickens County for fifty years or more.

Richardson stated that before trial he had told the Sheriff that he did not live in the county. Richardson testified that when he told the Sheriff he was not a resident, the Sheriff said, "That doesn't matter. Come on down here, we're going to have some fun anyway." He also testified that on voir dire he raised his hand when the judge asked about residency in qualifying the venire.

The Sheriff testified that Richardson never told him he was a resident of Lamar County.

The trial judge denied the motion for a mistrial finding that every effort had been made to get the jurors to answer the questions on voir dire and that "it was an oversight on the part of the juror or that he did not understand the importance and didn't come forward and this Court does not see that it could be prejudicial to the defendant."

Defense counsel only discovered Richardson's true residence when he polled the jury after they had returned their verdict.

"It was during the time that I was polling the jury and I was going over the names of the jurors and I saw where all the jury was from either Gordo, Aliceville, Reform and Carrollton, Pickens County. Then I saw Millport or Lamar County. I asked whether or not Millport was in Pickens County or what county it was in or was it in Fayette County and I ascertained that Millport was in Lamar County and that is when I made my report to question the juror. I found out when I polled the jury."

In brief, defendant's appellate counsel acknowledges that a list of prospective jurors was provided trial counsel. This list gave Richardson's address as "P.O. Box 446, Millport." This Court can take judicial notice of the fact that Millport is in Lamar County. Hall v. State, 213 Ala. 325, 104 So. 826 (1925).

In Bufford v. State, 382 So.2d 1162, 1172-73 (Ala.Cr.App.), cert. denied, 382 So.2d 1175 (Ala.1980), this Court held that the denial of a motion for new trial, based on the ground that one juror was not a resident of the county in which the offense was committed, was not error in the absence of a showing of prejudice to the accused.

"(T)he mere fact that she resided in an adjoining county does not per se require a reversal of this cause. Nonresidency in such a case does not impute prejudice per se .... Therefore, there is no inherent prejudice attributed to a trial by a nonresident or nonresidents of the county in which the offense was committed."

Although the incompetency of a juror because he is not a resident of the county in which the trial was had is ground for a challenge for cause, " 'the right to challenge ends, when the persons selected are sworn as jurors.' " Carson v. Pointer, 11 Ala.App. 462, 465, 66 So. 910 (1914), quoting from Henry v. State, 77 Ala. 75, 77 (1884). Carson held that although a juror on his voir dire examination by the court stated that he was a resident of the county, and the appellant did not discover the contrary until after the verdict, the verdict could not then be impeached. See also the following from Batson v. State, 216 Ala. 275, 280, 113 So. 300 (1927).

"That juror Davies was not a citizen of the county and state was a ground of challenge as a juror .... (authorities omitted) It did not invalidate the verdict and judgment rendered by his not being challenged. Kohl v. Lehlback, 160 U.S. 293, 16 S.Ct. 304, 40 L.Ed. 432; Raub v. Carpenter, 187 U.S. 159, 23 S.Ct. 72, 47 L.Ed. 119. * * * The objection that the juror is an alien comes too late after the jury was qualified generally by the court, as indicated, and put to and accepted by the parties. Herndon v. State, 2 Ala.App. 118, 56 So. 85; Carson v. Pointer, 11 Ala.App. 462, 66 So. 910."

Golden v. State, 39 Ala.App. 361, 370, 103 So.2d 52, cert. denied, 267 Ala. 456, 103 So.2d 62 (1958), "pretermit(ed) any consideration as to whether or not Carson v. Pointer, ... is still valid" since the question was unlikely to arise on a new trial. Because "(t)he decisions of the supreme court shall govern the holdings and decisions of the courts of appeals", Alabama Code Section 12-3-16 (1975), Carson must be upheld.

In this case there is an additional reason why the rule of Carson should stand. Here, the juror truthfully answered the judge's question. His response was not noticed by the prosecutor, the defendant or the trial judge. However, his proper address was given on the list of prospective jurors. When defense counsel discovered the ground for challenge he had no more information before him than he did when he accepted the jury. Since the objection could have been discovered with the exercise of reasonable diligence at the time the jury was being qualified, it does not constitute a proper ground...

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6 cases
  • Chavers v. State
    • United States
    • Alabama Court of Criminal Appeals
    • October 30, 2009
    ...(Ala.1989); McCollum v. State, 678 So.2d 1210 (Ala.Crim.App.1995); Bradley v. State, 577 So.2d 541 (Ala.Crim.App.1990); Pogue v. State, 429 So.2d 1159 (Ala.Crim.App.1983). Rather, Chavers objected as soon as the trial court brought the matter to his attention post-trial. See Keibler–Thompso......
  • Apicella v. State
    • United States
    • Alabama Court of Criminal Appeals
    • February 25, 2000
    ...was not a resident of the county in which he was being tried. This Court stated: "We again hold, as this Court did, in Pogue v. State, Ala.Cr.App., 429 So.2d 1159, 1160, cert. denied, Ala. "`In Bufford v. State, 382 So.2d 1162, 1172-73 (Ala.Cr.App.), cert. denied, 382 So.2d 1175 (Ala.1980),......
  • General Motors Corp. v. Hopper
    • United States
    • Alabama Supreme Court
    • July 12, 1996
    ...the trial, i.e., whether the plaintiff's failure to raise the issue before trial acts as a waiver of the issue. 1 In Pogue v. State, 429 So.2d 1159 (Ala.Crim.App.1983), the Court of Criminal Appeals, citing Batson v. State, 216 Ala. 275, 113 So. 300 (1927), held that the defendant, whose ju......
  • Wilson v. Childs
    • United States
    • South Carolina Court of Appeals
    • May 10, 1993
    ...(5th Cir.1957) (when an objection to a juror relates to a statutory disqualification, the objection may be waived); Pogue v. State, 429 So.2d 1159, 1161 (Ala.Crim.App.1983) (although a juror who is not a county or state resident may be challenged for cause, this objection is waived once the......
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