Spelce v. State

• Decision Date: 30 June 1924
• Docket Number: 8 Div. 138
• Citation: 20 Ala.App. 412,103 So. 694
• Parties: SPELCE et al. v. STATE.
• Court: Alabama Court of Appeals

103 So. 694

20 Ala.App. 412

SPELCE et al. v. STATE.

8 Div. 138

Court of Appeals of Alabama

June 30, 1924

Rehearing Denied Dec. 16, 1924

Appeal from Circuit Court, Madison County; James E. Horton, Jr. Judge.

George Spelce and Glenn Lawler were convicted of murder in the second decree, and they appeal. Affirmed.

Certiorari denied by Supreme Court in Ex parte Spelce, 103 So. 705.

J.F Thompson, of Birmingham, and Douglass Taylor and Lanier &amp Pride, all of Huntsville, for appellants.

Harwell G. Davis, Atty. Gen., and Lamar Field, Asst. Atty. Gen., for the State.

FOSTER J.

The appellants were tried jointly on an indictment charging murder in the first degree, were convicted of murder in the second degree, and each was sentenced to the penitentiary for a term of 14 years.

On May 22, 1923, the appellants separately and severally filed a plea of former jeopardy averring that they had previously, on March 4th, been put to trial in the case, and that the court entered an order of mistrial without the consent of either of the defendants and against the objections of each of the defendants, and without assigning the reason or cause for the mistrial, and without determining that there was a manifest necessity for the discharge of the jury without giving a verdict, or that the ends of justice would be defeated, and that the order for the discharge of the juror and the mistrial was as follows:

"The mother of one of the jurors impaneled to try these defendants, while the trial of the case was in progress, and it being necessary to discharge said juror from the further consideration of this case, a mistrial is ordered."

The above was a copy of the bench notes made by the trial judge and the order for mistrial upon which the plea of former jeopardy was based. Demurrer was interposed to the plea on the grounds that it affirmatively appeared by said plea that the judge trying said cause declared a mistrial because it was necessary to discharge one of the jurors impaneled to try said cause, and that the fact of such necessity therefor was entered upon the bench notes of said court by said judge, and upon the minutes of the court, and that it appears from said plea that, in the opinion of the court or judge trying said cause, it was necessary to discharge one of the jurors trying said cause; and the defendants moved that the clerk of the court be required to write up the minutes of the court in accordance with the bench notes of the judge dated March 6, 1923, and also moved to strike from the bench notes and the minutes the word "dying." The motions were submitted on the following agreed statement of facts:

"Whereupon said motions were submitted for the consideration of the court upon the following agreed statement of facts: On May 30, 1923: That on 6th of March, 1923, this case having gone to trial, and the testimony of the state having closed, the then presiding judge, Hon. Osceola Kyle, entered an order on the trial docket as his bench notes at that time, in words and figures as follows: 'March 6, 1923. The mother of one of the jurors impaneled to try these defendants, while the trial of the case is in progress, and it being necessary to discharge said juror from the further consideration of this cause, a mistrial is ordered.'

"That on May 30, 1923, the circuit court of this county being in session, Hon. James E. Horton, Jr., one of the judges of the circuit presiding, Hon. Osceola Kyle, the other judge of this circuit, who is presiding judge of the circuit, came to Huntsville and without notice to the defendants or to the counsel, and without motion on the part of the state to amend the bench notes or their memorandum nunc pro tunc, ex mero motu added to the bench notes as above quoted, and after the words 'these defendants,' the word 'dying,' and wrote up the cause of the mistrial, or docketed the cause of said trial, and did prepare the following judgment entry made and entered in said cause, and entered upon the minutes of said court as the judgment in said cause, which is now upon the minutes of said court, and is in words. to wit: 'State of Alabama v. George Spelce, Glenn Lawler. May 30, 1923. Comes the defendant separately and severally and move the court to strike from the bench notes and minute entry as appears on the trial docket of this court, as set out in their motion, and the same being submitted to and duly considered by the court, it is therefore ordered and adjudged by the court that said motion be and the same is hereby overruled.' "

Demurrer to the plea of former jeopardy was sustained and the motions of the defendants above referred to were overruled by the court, and exception reserved to this action of the court.

Section 9 of the Constitution of 1901 provides that no one shall be twice put in jeopardy for the same offense and also that--

"Courts may, for reasons fixed by law, discharge juries from the consideration of any case, and no one shall gain an advantage by reason of the discharge of the jury."

Section 9, supra, delegates to the Legislature authority to provide for a mistrial for any reason to be fixed by law. Andrews v. State, 174 Ala. 11, 56 So. 998, Ann.Cas.1914B, 760. By section 7314, Code 1907, the Legislature provided for the discharge of juries without the consent of the parties, "when in the opinion of the court or judge there is a manifest necessity for the discharge, or when the ends of justice would otherwise be defeated." And said section also provides that, where "the jury is discharged without a verdict, a mistrial shall be entered upon the minutes of the court, assigning the reason or cause for the mistrial; and no person shall gain any advantage by reason of such discharge of the jury."

Unless something has occurred after the jury were sworn, which in legal contemplation necessitates the withdrawal of the case from the jury, the discharge of a jury without verdict and before the expiration of the term acquits the defendant. The facts presenting such necessity are the sickness of the judge (Nugent v. State, 4 Stew. & P. 72, 24 Am.Dec. 746); or a juror (Powell v. State, 19 Ala. 577); or the prisoner (Brown v. State, 38 Tex. 482); or the escape of the prisoner (State ex rel. Battle, 7 Ala. 259); the sudden illness of the solicitor, unless he have assistants or associates who can proceed with the case ( U.S. v. Watson, 3 Ben. 1 Fed.Cas.No. 16,651); the serious illness of a juror's wife (Hawes v. State, 88 Ala. 37, 7 So. 302); the death of a juror's son (State v. Davis, 31 W.Va. 390, 7 S.E. 24).

In Ned's Case, 7 Port. 187, the following propositions were laid down:

(1) "That courts have not, in capital cases, a discretionary authority to discharge a jury after evidence given." (2) "That a jury is, ipso facto, discharged by the termination of the authority of the court to which it is attached." (3) "That a court does possess the authority to discharge a jury, in any case of pressing necessity, and should exercise it whenever such a case is made to appear." (4) "That sudden illness of a juror, or of the prisoner, so that the trial cannot proceed, are ascertained cases of necessity, and that many others exist, which can only be defined when particular cases arise," etc.

In the case at bar the necessity for discharging the jury arose from the death of the mother of one of the jurors. It requires no argument to show that the effect upon the mind of the juror upon receiving information of the death of his mother was to render him incapable of that calm and deliberate consideration and reasoning which is due in the investigation of cases of this importance and magnitude. It was unquestionably the duty of the court to discharge the juror under such circumstances.

The plea of former jeopardy, setting out a copy of the judge's bench notes, affirmatively showed the necessity and the finding by the court that it was necessary to discharge the juror and that for that reason a mistrial was entered. The bench notes were sufficient to show what the judgment was intended to be and it was the duty of the clerk to enter upon the minutes of the court the judgment intended as evidence by the bench notes. The trial judge did not exceed his authority in amending ex mero motu the bench notes during term time by supplying a clerical omission. The minute entry by the clerk during the term complied with the requirements of the statute and was sufficient. The defendants cannot be said to have been placed in jeopardy within the meaning of the constitutional provision, supra. The court did not error in sustaining the demurrer to the plea or in overruling the motions of the defendants as to instructions to the clerk in writing up the minutes.

The state's testimony was directed to showing that the homicide occurred about 10 o'clock in the morning on the premises which Glenn Lawler, one of the appellants, had sold to the deceased. A controversy arose as to the rights of the appellant Lawler and the deceased, Spence, on the land sold by Lawler to Spence. The appellant Lawler went to the premises early in the morning and was loading some of his effects in a wagon to remove them from the place when a controversy arose between Lawler and Spence as to the right to immediate possession of the property; Lawler claiming that he had a right to remain there longer if he desired, and Spence claiming the right in himself to immediate possession. Some words were passed and Lawler left the place in his automobile and went to a store and obtained a gun and some shells and inquired over telephone for his father-in-law Spelce, one of the appellants, but did not get in telephone communication with Spelce. Lawler started back along the road in the direction of the premises where he had left Spence and overtook the...