Smiley v. State
| Decision Date | 22 May 1979 |
| Docket Number | 3 Div. 40 |
| Citation | 371 So.2d 469 |
| Parties | Frank Herman SMILEY v. STATE. |
| Court | Alabama Court of Criminal Appeals |
Tyrone C. Means, Montgomery, for appellant.
Charles A. Graddick, Atty. Gen., and Thomas R. Allison, Asst. Atty. Gen., for the State, appellee.
One of the two issues expressly presented on appeal was first raised in the trial court by a motion for a new trial. It was alleged therein that the verdict and judgment convicting defendant of burglary and grand larceny should be set aside on the ground, inter alia, as follows:
It is argued by appellant that he was "misled" by the statement made by the particular juror that she was an "attorney," in response to a question by the court as to the occupation of each of the jurors from whom the jury to try this case was selected; it is further argued that defendant did not know that the juror was assistant attorney general of Alabama until some time after the trial. We cast no shadow whatever on such contention in emphasizing our function to look to the record, and only to the record, as to what occurred in the court below. Neither in the motion for a new trial nor in any other part of the record is there any claim, contention or showing of any kind, that defendant did not know prior to the selection of the jury that said juror was an assistant attorney general.
The rule to govern us is succinctly stated in Williams v. State, Ala., 342 So.2d 1328, 1329, as follows:
"We state the rule thusly: A motion challenging the composition of a grand jury, a petit jury, or qualifications of individual jurors, filed after the commencment of trial, Must allege, and proof must show, that grounds for the motion were not known to the defendant before he went to trial, or that he could not have known them by exercising due diligence." (emphasis supplied).
Whether the trial court would have granted the motion for a new trial if there had been an allegation and proof that defendant had been misled is not for us to say, but in the absence of such allegation and proof we are precluded from holding that the trial court erred in overruling the motion for a new trial.
The only other insistence of appellant is that the court erred in denying a motion for a mistrial under circumstances as follows:
The use of the expression "mug shots" or the like in referring to pictures...
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Watson v. State
...to the defendant before he went to trial, or that he could not have known them by exercising due diligence." See also Smiley v. State, 371 So.2d 469 (Ala.Cr.App.1979). Whether the trial court would have granted the motion for a new trial and the companion motion to subpoena jurors if there ......
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Wynn v. State, 7 Div. 946
...cert. denied, 398 So.2d 332 (Ala.1981), cert. denied, 452 U.S. 941, 101 S.Ct. 3085, 69 L.Ed.2d 955 (1981); Smiley v. State, 371 So.2d 469 (Ala.Cr.App.1979). Smithson v. State, 50 Ala.App. 318, 278 So.2d 766 We have examined the issues presented on this appeal and have found no error. This c......
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Tucker v. State
...court, prior to trial, or on motion for new trial, to demonstrate the cause for bias asserted by appellant on appeal. Smiley v. State, 371 So.2d 469, 470 (Ala.Cr.App.1979) applies the following "The rule to govern us is succintly stated in Williams v. State, Ala., 342 So.2d 1328, 1329, as f......
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Cole v. State
...ever look at the mug shot?" was removed by the trial court's prompt action in instructing the jury to disregard. In Smiley v. State, 371 So.2d 469, 470-71 (Ala.Cr.App.1979), a case very similar to the present case, we concluded that a police officer's unresponsive statement "I was going to ......