Stephens v. State

• Decision Date: 23 March 1950
• Docket Number: 4 Div. 571
• Citation: 254 Ala. 50,46 So.2d 820
• Parties: STEPHENS v. STATE.
• Court: Alabama Supreme Court

Page 820

46 So.2d 820

254 Ala. 50

STEPHENS v. STATE.

4 Div. 571.

Supreme Court of Alabama.

March 23, 1950.

Rehearing Denied May 18, 1950.

Further Rehearing Denied June 22, 1950.

E. O. Baldwin and Jas. M. Prestwood, of Andalusia, for appellant.

A. A. Carmichael, Atty. Gen., and Jas. T. Hardin, Asst. Atty. Gen., for the State.

This charge was refused to defendant: '2 The Court charges the jury that if you believe from all the evidence that the defendant, was himself without fault, in bringing on the difficulty and had no reasonable mode of escape, reasonably apprehended death or great bodily harm to himself unless he struck the assaulted party, the cutting was justifiable and you should acquit the defendant.'

BROWN, Justice.

This is the third appeal by the defendant in this case. On the first trial under the indictment for murder in the first degree, he was convicted of murder in the second degree and sentenced to the penitentiary for forty years. On appeal to this court the judgment was reversed. Stephens v. State, 250 Ala. 123, 33 So.2d 245.

After remandment at the regular session of the Circuit Court of Covington County, on October 11, 1948, following the correct procedure, the defendant was rearraigned on said indictment in open court and was called upon to plead. He pleaded former acquittal of murder in the first degree and not guilty in the second degree and to all other crimes charged in the indictment. As the minute entry recites, 'The State and defendant agree in open Court that the defendant was heretofore tried in the circuit court under this indictment and the defendant was convicted of murder in the second degree and given a sentence of 40 years in the penitentiary, which said judgment was reversed by the Supreme Court of Alabama as set out in 250 Ala. 123, 33 So.2d 245, and thereby murder in the first degree was eliminated.'

On the second trial the defendant was convicted of murder in the second degree and sentenced to the penitentiary for a term of 25 years and again appealed. That judgment was reversed and the case was remanded, 252 Ala. 183, 40 So.2d 90.

On the third trial the defendant was arraigned and pleaded not guilty. The special prosecuting attorney in putting the case to the jury on the last trial stated, 'The indictment charges murder in the first degree according to the way it is written. Now, Gentlemen, by other proceedings that indictment in legal effect has been changed and it now charges murder in the second degree, instead of murder in the first degree. So the legal charge against the defendant is murder in the second degree for the killing of George Cawley, Sr., prior to the Grand Jury of December, 1946.' On the trial which followed the defendant was convicted of the offense of murder in the second degree and his punishment fixed by the jury at 25 years in the penitentiary. It is from the judgment and sentence entered on this verdict that the defendant has appealed.

The session of the court at which the defendant's case was first set for trial after the second reversal commenced on the 7th day of June, 1949, defendant's case being on call for the 8th of June. The order of the court fixing the time for said session for the trial of criminal jury cases was entered on the minutes or records of the court on Nov. 26, 1948. In the same order June 20th was designated for the trial of civil jury cases. The writ of venire facias issued to the sheriff for summoning jurors for service during the week beginning June 6th was returned by the sheriff showing service on all the jurors named, fifty-five in number, except about six who were not served. These jurors were called in open court, questioned as to their qualifications, several excused from service and those remaining organized into four panels, the first three panels consisting of twelve jurors each and the fourth panel of seven only. There is nothing in this record to negative the fact that said juries were used in the trial of cases during the week of June 6, 1949 and were discharged at the end of the week. On the 8th of June the court, acting through and by Judge Simmons, amended the order fixing the date of the session of the court commencing on the 6th of June, so as to embrace the week of the 27th of June. There is nothing in the record going to show that the jurors summoned for the week of the 6th of June were ordered to serve on juries during the week of the 27th of June. Following said amendatory order which appears to have been filed on the 10th of June, 1949, by the clerk, the minutes recite:

'Be It Remembered: That this case came on to be tried on this the 27th day of June, 1949, before Hon. W. E. Callen, Special Judge of the 22nd Judicial Circuit of Alabama, and a struck jury from a special and regular venire, and the following proceedings were had: * * *.'

The record further recites: 'At this point the regular and special jurors were duly qualified and struck.

'The Court: You gentlemen stand up and raise your right hand. You and each of you do solemnly swear that you will well and truly try the issues involved between the State of Alabama vs. Alex Stephens and a true verdict render according to the evidence, so held (help) you God.

'You gentlemen may be seated.

'Gentlemen, it is understood, of course, that you will remain together and you will be under the custody and control of the bailiff, and do not discuss this case among yourselves or anyone on the outside, and by no means let anyone from the outside approach you, and if any one does approach you please notify the court that I might take the proper action.

'(At this point a recess was taken for 30 minutes).

'Mr. Smith reads the indictment to the jury, and further states: 'The indictment charges murder in the first degree according to the way it is written. Now, Gentlemen, by other court proceedings that indictment in a legal effect has been changed and it now charges murder in the second degree instead of murder in the first degree. So the legal charge against this defendant is murder in the second degree for the killing of George Cawley prior to the grand jury of December, 1946.'

'Mr. Prestwood states the defense. * * *.'

Among other matters offered in support of the defendant's motion to quash the venire and to enter discontinuance were the following bench notes:

'June 7, 1949. The bond of $4,000.00 heretofore set in this case is set aside and held for naught and bond in this case is set at $8000.00. An alias capias to issue forthwith. W. E. Callen, Judge.

'Defendant being ill and confined to the hospital, defendant's counsel moving for a continuance of this case, the same is granted.

'W. E. Callen, Judge.

'June 7, 1949. This case is set for trial on Monday, June 27, 1949. W. E. Callen, Judge.

'June 27, 1949. Motion of defendant for a discontinuance of this cause is denied to which action on the part of the court counsel for defendant does except. W. E. Callen, Judge.

'June 27, 1949. The objection and protest of defendant to being put to trial having been considered by the court the same is hereby overruled and denied, to which action on the part of the court defendant by and through his counsel does except. W. E. Callen, Judge.

'June 27, 1949. The motion of defendant to quash the venire in attendance at court this week is hereby denied to which action on the part of the court defendant does except. W. E. Callen, Judge.

'June 28, 1949. The State by its solicitor enters a nol prosse as to the first degree murder charge covered by the indictment, which action was taken before the case was submitted to the jury,...