Smith v. State, 8 Div. 389
Decision Date | 10 June 1958 |
Docket Number | 8 Div. 389 |
Citation | 105 So.2d 662,39 Ala.App. 501 |
Parties | S. L. SMITH v. STATE. |
Court | Alabama Court of Appeals |
John B. Tally and Scott, Dawson & McGinty, Scottsboro, for appellant.
John Patterson, Atty. Gen., and Paul T. Gish, Jr., Asst. Atty. Gen., for the State.
This is an appeal from a judgment of guilt in the Jackson Circuit Court for assault with intent to murder with a sentence of three years penal servitude.
Without the consent of the State, the defendant or his counsel, the jury was allowed to separate at the close the arguments.
The record shows:
'At the conclusion of the argument of counsel to the Jury:
'Jury instruction on adjournment as follows:
'You will finally try this case upon the testimony heard from the witness stand and the law as I give it to you in my oral charge, and the law says that no outside influence should be permitted to affect you at all.
'I know you want to observe your oaths in this matter, and I am sure you will not let anything happen which might tend to influence you in this case one way or the other.
'Come back tomorrow morning at nine o'clock promptly and take a seat in the jury box, and I will give you the charge, and we will proceed further with this matter.
'Now, Gentlemen, with that instruction, go ahead and be back in time for court in the morning.
'(Thereupon court adjourned for the night).'
On motion for a new trial all of the jurors testified. The evidence given by George Olen Yates we consider pertinent and here give his entire direct and most of his cross-examination:
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'Mr. Black: We object.
'The Court: Overruled.
We consider this testimony on cross-examination shows the State failed to overcome the presumption of injury arising from the proof of separation. Particularly, we advert to Mrs. Yates discussing the case in his presence without Mr. Yates admonishing her not to; this was neglect or disregard of the trial judge's instruction.
King v. State, 266 Ala. 232, 95 So.2d 816, presents a different set of facts--there a single juror was required to leave the group to go (with a deputy sheriff) to a hospital; the deputy isolated the juror from outside contacts. Here, the juror Yates, perhaps due to circumstances beyond his control, allowed discussion of the case in his presence and hearing.
This court individually prefers, as a matter of workability, the rule laid down by way of dictum by Mr. Justice Bouldin in Mitchell v. State, 244 Ala. 503, 14 So.2d 132, which in turn was disapproved by dictum in Wright v. State, 262 Ala. 420, 79 So.2d 74. Indeed, it would be far better to do away with all jury separations in felony cases--regardless of consent. Jury tampering or canvassing is not a lost art. See Wiggins v. State, Ala.App., 104 So.2d 560. Thus, in the King case it occurs to us that the sheriff is (at least nominally) considered to be embodiment of the State in a prosecution; he is allowed to sit with the solicitor throughout a trial without being required to be sequestered if he is a witness.
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