Smithson v. State
| Decision Date | 01 May 1973 |
| Docket Number | 8 Div. 341 |
| Citation | 50 Ala.App. 318,278 So.2d 766 |
| Parties | William Harold SMITHSON v. STATE. |
| Court | Alabama Court of Criminal Appeals |
Miles T. Powell, Decatur, for appellant.
William J. Baxley, Atty. Gen., and Andrew J. Gentry, Jr., Auburn, Sp. Asst. Atty. Gen., for the State.
The Grand Jury of Morgan County, Alabama, indicted the appellant for first degree manslaughter, arising out of an incident which occurred on April 24, 1970, in which the appellant was operating a motor vehicle. The Jury's verdict and judgment fixed punishment at ten years imprisonment in the penitentiary.
At trial, the State presented the testimony of one R. C. Royer, and also Cecil C. Collins, who testified that they were passengers in an automobile being driven by the deceased, Ira M. Pike, on their return from Huntsville, where they were employed at the Arsenal, to Hartselle, Alabama, where they resided. At a point approximately four miles east of Hartselle, the left rear tire of the automobile went flat, and the deceased pulled over on the shoulder to change the tire. One of his two passengers, Mr. Collins, walked east toward Huntsville to set up a light, and the other, Mr. R. C. Royer, assisted in getting the jack out and putting it under the car, while the deceased was loosening the lugs on the wheel. Mr. Royer testified that he saw a White car coming, weaving on the road, and strike the deceased, Mr. Pike, as he was loosening the wheel lugs. The motor vehicle did not stop, and as the next car came by, the two men asked them to follow the vehicle, the White car, and get its tag number, which was done by a Mrs. Martin, who also testified. The tenor of the State's evidence was that the appellant had been drinking Wildcat whiskey since midmorning of the day in question, and was highly intoxicated, that he was driving at approximately seventy miles per hour at the time his automobile struck the deceased. The appellant did not testify in this case, but offered primarily character witnesses.
I
On voir dire examination of the jury venire by appellant's counsel concerning their qualifications, the question was asked whether or not any of the venire knew or were acquainted with the following witness in the case: 'R. C. Royer that lives in Hartselle.' To this question, two jurors indicated that they were acquainted with Mr. Royer, but Mr. Ramon T. Royer, who was a member of the venire, and ultimately served on the trial jury, and was elected foreman thereof, did not answer or indicate knowing the witness, R. C. Royer.
At the conclusion of the trial, appellant's counsel entered the clerk's office as the jurors and witnesses were being paid, and overheard a comment from R. C. Royer to the juror, Ramon T. Royer, in substance, 'You have been telling me that for four or five years,' and after receiving their pay, the juror and witness left the clerk's office.
Appellant's counsel filed a motion for new trial, calling to the trial court's attention the fact that Ramon T. Royer, who had been selected foreman of the trial jury, failed to answer the question, 'Did he know the witness, R. C. Royer.' The testimony developed at the hearing established that the two Mr. Royers had served as members of the same jury venire in 1968, but not on the same trial jury, and they felt they were related to some degree. Mr. R. C. Royer testified, 'I have never discussed it with Mr. Ramon T. Royer,' and further, 'Well, fourth, fifth, maybe sixth cousins, something like that,' but stated that they had not seen each other since 1968, nor had they ever visited in each other's home, nor had they had conversation pertaining to the subject at trial in the case at bar. It further developed that the respective grandparents of each Mr. Royer were dead at the time of their respective births, and that they had never established with certainty their blood relationship.
Further, Mr. Ramon T. Royer, the juror, testified that he did not remember Mr. R. C. Royer, when the question was asked of the venire, that he felt he was being truthful in saying that he did not know him as he had not seen him since 1968 and did not recognize him until he took the witness stand as being the 'R. C. Royer inquired about.'
Appellant's counsel also submitted that during closing argument, the juror, Mr Ramon T. Royer, made the statement to him, 'Could you speak a little softer, sir,' and that this distracted him and made him change his argument, and further showed bias on the part of the juror. The juror, Mr. Ramon T. Royer, stated that the case had been going on several days, and the argument had continued for quite sometime, that at the time he did make the statement indicated, but that in response to the question, 'Did you decide the case on the evidence, and did the other members decide the case on the facts presented,' he responded, 'It was decided on the evidence, sir.'
Following an extensive hearing on the motion for a new trial, the trial judge made the following finding:
'THE COURT: A jury verdict is a solemn thing in the eyes of the law, and it is not lightly tampered with by a judge, or a court of appeals court, or anybody else. It appears to me that on Grounds 6 and 7 which goes to the issue of the failure of Ramon Royer to answer the questions--the question 'Does anybody know R. C. Royer,' or of like import, that there is no prejudice pertaining there that reflects on the outcome of the case as concerns this defendant as it is defined by the cases as I read them.
'I find that as a matter of fact R. C. Royer knew Ramon Royer, but Ramon Royer didn't know R. C. Royer at the time the question was asked.
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Brown v. State
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