Redus v. State

• Citation: 9 So.2d 914,243 Ala. 320
• Decision Date: 18 June 1942
• Docket Number: 8 Div. 143.
• Parties: REDUS v. STATE.
• Court: Supreme Court of Alabama

9 So.2d 914

243 Ala. 320

REDUS v. STATE.

8 Div. 143.

Supreme Court of Alabama

June 18, 1942

Rehearing Denied Oct. 8, 1942.

Appeal from Circuit Court, Limestone County; Seybourn H. Lynne judge.

Henry D. Jones, of Moulton, for appellant.

Thos S. Lawson, Atty. Gen., and John O. Harris, Asst. Atty. Gen., for the State.

THOMAS Justice.

The indictment and conviction were for murder in the first degree. The indictment and verdict of guilty, fixing the punishment at death, were in due form.

No question is presented for review as touching the organization of the court, the arraignment of the defendant, the setting down of his case for trial, nor as to the venire or selection of the jury by which appellant was tried.

The judgment of the court was as required by law under the verdict rendered by the jury and the statutes that obtain. Code 1940, T. 14, §§ 314-319.

There were 51 written charges requested by the defendant and given by the court that covered the many phases of the trial. Seven written charges requested by the defendant were refused. We will consider the refused charges later. See Wilson v. State, Ala.Sup., 8 So.2d 422, as to charges of the court touching the matter sought to be impressed on the jury in the refused charges.

The oral charge of the court was comprehensive and covered many of the instructions contained in the given charges.

Refused charges L., M., N., and 36 were defendant's request for the affirmative instruction. The corpus delicti being shown by evidence and there being material conflict in the evidence, the affirmative charge was denied to the defendant without error.

The court, in its oral charge, correctly defined insanity as excusing for crime. Parsons v. State, 81 Ala. 577, 2 So. 854, 60 Am.Rep. 193.

Refused charge 4, touching the subject of insanity, was abstract. This was conceded by counsel for defendant in the oral argument, which was in accord with the evidence on the subject. Refused charge 46 was condemned by this court in Hayes v. State, 225 Ala. 253, 255, 142 So. 675, 677, for the stated reason that the charge was properly refused as being "argumentative and misleading, if not otherwise faulty," and in the instant case the first ten words are unintelligible. We have examined carefully the given charges and the matter sought to be embraced in refused charge 46 was fully and fairly stated in given charge 12, at the request of defendant-appellant.

Refused charge AA was in the following words: "AA Gentlemen of the jury embraced in the indictment of this case is the offense of manslaughter in the first degree, and I charge you that it is not necessary for the defendant, at the time he fired the shots, should have been unconscious of what he was doing; but, if there was a sufficient provocation to excite sudden passion and defendant acted under such passion, then the presumption is that passion disturbed the sway of reason and made him regardless of his act; and if the jury finds this from the evidence they may find him guilty of manslaughter in the first degree." It will be noted that this charge was vague and uncertain and contained misleading tendencies as to the law of passion suddenly aroused. McBryde v. State, 156 Ala. 44, 47 So. 302. It may be said further of the charge that it was not a correct definition of manslaughter in the first degree as being an unlawful killing of another without malice but voluntarily done in a sudden heat of passion presently engendered by sufficient provocation.

Adverting to the oral charge it should be observed that it was comprehensive under the law and the evidence touching the defendant's guilt or innocence and correctly defined the degrees of murder and manslaughter, the burden of proof that must be discharged by the state before a conviction may be had, and the reasonable doubt and probabilities of innocence which obtains during the trial.

The jury were further instructed as to the weight to be given to evidence of good character of a defendant when considered in connection with all the other evidence and that when so considered such evidence of good character may generate a reasonable doubt of defendant's guilt.

The court further instructed the jury as to the effect of evidence given by expert witnesses and that while the jury are not concluded by the opinion of an expert, it is their province as triers of the fact to measure the weight and correctness of expert opinions given.

We are brought to a consideration of rulings made in the introduction and rejection of evidence and the refusing of defendant's motion for a new trial. The motion for a new trial is contained in the record proper. Worthy of consideration were the facts that the deputy sheriff Biles, who was a material witness for the state, was placed in charge of the jury as a bailiff during the deliberations in the case and that the jury occupied six or seven rooms in a local hotel during the trial of the case and were separated as a body, due to the fact that there were no connecting doors to the rooms so occupied by them. In oral argument and brief appellant relies on the recent decision in Oliver v. State, 232 Ala. 5, 166 So. 615, as authority for reversal because the deputy sheriff Biles was in charge of the jury.

In Clark v. State, 240 Ala. 65, 197 So. 23, 24, it was held:

"An officer is not rendered incompetent as a witness by fact that he, as such officer, had duty of caring for, attending to, and being in charge of, jury.

"That a sheriff and deputy sheriffs, who were material witnesses for state in murder prosecution, were in charge of jury during meal hours, and at night in absence of trial judge, was not ground for granting defendant's motion for new trial."

This holding was in accord with Oliver v. State, supra, and Pope v. State, 168 Ala. 33, 53 So. 292.

In Oliver v. State, 232 Ala. 5, 166 So. 615, 617, it was held on the facts before us that: " * * * 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."

In that case reversal rested on the peculiar facts that the one who chiefly worked up the evidence for the state was with the jury in their deliberations, slept and ate with them, and was the coroner, who had been appointed special deputy for the occasion, and was not a sheriff or regular deputy sheriff. In the Clark case, supra, there was affirmance. The facts in that case were that the sheriff and deputy sheriff, material witnesses for the state, were in charge of the jury during meal hours and at night during the trial.

In McElory v. State, Ala.App., 7 So.2d 508; Id., Ala.Sup., 7 So.2d 489, there was reversal because of the fact that the jury were transported beyond the confines of the county and domiciled in separate hotel rooms in Jefferson County.

The foregoing authorities illustrate that each case is to be judged by its own peculiar and particular facts.

In support of defendant's insistence that the jury were allowed to separate, being placed in six or 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 sheriff and eleven jurors occupied three adjoining rooms in the hotel and the twelfth juror slept on a cot in the hall near the stairway, which was used by the public generally. It was shown that this twelfth juror left the hotel alone early the next morning and went up town. The holding was that there was a presumption of injury in this juror sleeping as he did and in going up town alone, since the state failed to rebut such presumption of injury. However, the opinion refused to decide if there was injury because of the separation of the jury by virtue of the sleeping arrangements indicated.

In the Butler case, supra, Judge Stone said: " * * * If any of the jurors have been conversed with, on questions affecting the prisoner's guilt; or, if other influences have been exerted, which may have biased their deliberations, a new trial should be granted. On the other hand, if there be an entire negation of such interference, there is no ground for setting aside the verdict. * * *."

The record fails to show any prejudicial error intervened by reason of the separation of the jury in the instant case during the night spent in the local hotel in Athens.

In Arnett v. State, 225 Ala. 8, 141 So. 699, 700, Mr. Justice Foster made an observation which has application to jury trials in small towns and cities and which care for the members of the jury during the night. He concludes by saying: "The temporary separation here shown was a reasonable allowance by the court, and seems to have been properly safeguarded and no prejudice resulted."

Such is the case disclosed by the present record as to the care given to the jury at the hotel. See 34 A.L.R. 1204, and 79 A.L.R. 833, where the leading authorities on this point are collected and discussed. Davis v. State, 240 Ala. 365, 199 So. 547.

The verdict of the jury being for murder in the first degree, and the death penalty having been imposed, we will consider the bill of exceptions for rulings on the introduction and exclusion of evidence on the trial of the case.

The witness from the State Department of Toxicology of Auburn C.J. Rehling, qualified as an expert on the matters about which he testifie...