Robinson v. State
| Decision Date | 19 June 1912 |
| Parties | ROBINSON v. STATE. |
| Court | Alabama Court of Appeals |
Appeal from Circuit Court, Marion County; C. P. Almon, Judge.
Bart Robinson was convicted of murder in the second degree, and he appeals. Reversed and remanded.
A. H Carmichael, of Tuscumbia, and E. B. & K. V. Fite, of Hamilton, for appellant.
R. C. Brickell, Atty. Gen., and W. L. Martin Asst. Atty. Gen., for the State.
The defendant was charged with murder in the first degree, and was convicted of murder in the second degree.
It was not error for the trial court, upon being informed, during a recess of the court after the jury was selected and impaneled, but before the trial was entered upon, that one of the jurors had expressed an opinion as to the guilt or innocence of the accused, to examine ex mero motu the juror and ascertain if he had expressed an opinion that the defendant should be either acquitted or convicted. It is the duty of the presiding judge, in so far as lies within his power, to see that the case of the state and the defendant is submitted to a fair and impartial jury that have no fixed opinion of the guilt or innocence of the accused. And when it is brought to the attention of the court that such a condition does not exist as to one of the jurors about to enter upon the trial of a case it is entirely proper for the court to examine and inquire into the matter.
The statement of counsel in brief as to what the judge "inserted" in the bill of exceptions in connection with the examination of this juror cannot be considered. We take the record, including the bill of exceptions, as set out in the transcript as certified by the clerk, as correct in every particular. If the bill of exceptions as signed was incorrect, appellant should have moved to establish a correct bill, and, not having done so, cannot be heard to make ex parte statements in brief as to what the judge "inserted."
The question asked the witness Dixie Vickery "The spring before your father was killed, state to the jury whether or not the defendant, Bart Robinson, met with you or you with him, and gave you whisky, and tried to hire you to kill your father?" should not have been permitted as a whole against the defendant's specified objection pointing out the erroneous part. It was competent to show, as tending to prove the animus of the defendant, that he had tried to get the witness to kill his father; but it was not proper to allow the witness to testify to the defendant's having violated the law in giving whisky to the witness. The defendant interposed specifically an objection to that part of the question calling for a statement that the defendant had given the witness whisky on the occasion inquired about. This witness was 17 years old when his father was killed; and the question called for proof of the commission of another and different offense having been committed by the defendant which, under the facts of this case, was calculated to prejudice the minds of the jury against the defendant on an immaterial and irrelevant matter. The offense was entirely separate and distinct from the crime with which the defendant was charged. Proof of a collateral crime is never relevant evidence, unless connected with the crime under investigation as part of a general and composite transaction. Underhill on...
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