Taylor v. State

• Decision Date: 04 December 1930
• Docket Number: 1 Div. 581.
• Parties: TAYLOR v. STATE.
• Court: Alabama Supreme Court

131 So. 236

222 Ala. 140

TAYLOR v. STATE.

1 Div. 581.

Supreme Court of Alabama

December 4, 1930

Appeal from Circuit Court, Mobile County; Joel W. Goldsby, Judge.

Elijah Henry Taylor was convicted of murder in the first degree, and he appeals.

Reversed and remanded.

Court's conclusion regarding existence of "atmosphere and attitude" of juror conveying notice of identity held not statement of facts proper for insertion in bill of exceptions (Code 1923, § 6432).

The record shows that the special venire was waived. Code 1923, § 8651. It appears that in qualifying the regular jurors, the number being reduced below thirty, talesmen were drawn as provided by Code, § 8646, and that one of the slips drawn from the jury box contained the name of John F. Kelly, whose address was given as 310 N. Jackson-Ward 1; occupation agent; business address, Commonwealth Life Insurance Company. The evidence shows that this was the only slip in the jury box containing the name of John F. Kelly; but another man of that name resided about eight miles from the city, whose business was that of a saw filer. He was listed in the telephone directory, and he was summoned over the telephone to appear as a juror.

Both men were unknown to defendant and his counsel. When the jury was struck, this name was left on the list, and John F Kelly, saw filer, was one of the jurors who tried the defendant. The evidence further shows that neither defendant nor his counsel knew of the substitution until after the trial, when the man whose name was drawn informed them. It also appears that before the trial was ended he had informed the clerk, who told the presiding judge and solicitor, but not defendant or his counsel.

Upon receiving such information, defendant's counsel, in due time, moved for a new trial on that ground. The court overruled the motion, and, after making the order on the motion, of his own accord, ordered an insertion to be made in the record as follows:

"The court, in ruling upon the motion of the defendant for a new trial, feels it his duty to set out a statement to be embodied in said ruling. Upon the motion for the new trial there is an affidavit, filed by the attorneys of record for the defendant, in which it is stated that the car drawn in reference to the juror Kelly contained the following words and figures:

"'Ward No. 1, Precinct No. __________, Name, Kelly, John F.

"'Occupation-Agent, residence, 310 N. Jackson,

"'Business address-Commonwealth Ins. Co.'

"The affidavit further states that the affiant made many inquiries as to the John F. Kelly described on said card and that they were informed by prominent lawyers of Mobile and by other men that he was a kindhearted man, etc. While it may not be a matter of record, the court feels it his duty to say that so far as the court was concerned, while it knew nothing of the contents of the card and was not considering that question at the time; the appearance of the juror Kelly who was selected, his manner, his mode of answering questions upon the voir dire and his general atmosphere and attitude in reference to demeanor and appearance was so different from that of what might have been expected of a person representing an insurance company, that, in the opinion of the court, these conditions, as seen by the court and not set out here as a sworn fact, should have put defendant's attorneys upon notice for further investigation as to whether the correct juror had been summoned or not. This statement is made, as the court feels that without the appellate court having an opportunity to see the surrounding circumstances and note the demeanor, appearance and conversation of the juror Kelly, who was so selected, this court might be a great disadvantage in ruling, as it thinks correctly in this case upon the motion. The motion is overruled and denied, and the defendant excepts."

To this order the defendant reserved an exception.

J. Gordon Bennett and Harry Seale, both of Mobile, for appellant.

Charlie C. McCall, Atty. Gen., for the State.

FOSTER J.

A bill of exceptions is of statutory origin, and should conform in all respects to the statute which gives it a place in our system. Its whole office as thus created is to present for review the "point, charge, opinion or decision, where the court is supposed to err, with such a statement of facts as is necessary to make it intelligible." Section 6432, Code; Petty v. Dill, 53 Ala. 641; Ex parte Mayfield, 63 Ala. 203; Tyree v. Parham's Ex'r, 66 Ala. 424, 432. Under certain circumstances it should contain a statement of the testimony in extenso. Section 6438, Code, Circuit Court Rule 32.

A motion for a new trial must be heard and determined on the evidence submitted on that motion and on the evidence heard on the main trial, though not reintroduced. Allison v. Cox, 220 Ala. 624, 127 So. 192. We think that the court's conclusion as to the existence of a certain "atmosphere and attitude" of a person as conveying notice of his identity is not the statement of facts in evidence proper for insertion in a bill of exceptions, or otherwise in the record. The details of a situation showing the atmosphere of a trial are sometimes helpful, but, to justify it, such details must be shown by the evidence to support the conclusion, and are proper matters of fact which should be stated in the bill of exceptions. And counsel who are adverse to the ruling should have an opportunity to combat the facts which may lead to the conclusion reached.

We do not think that the facts show that defendant or his counsel are chargeable with notice sufficient to make an inquiry as to the identity of the juror. Express notice of the facts was during the trial communicated to the clerk, the solicitor, and trial judge, but not to defendant. We think that, if defendant's counsel are to be bound, they should also have been informed of the facts during the trial as well as the judge and solicitor. We are therefore of the opinion that counsel for defendant should not be held to have had notice of the substitution of a juror for one who was drawn for the trial by anything shown in this record.

It seems to us to be clearly established that the juror whose name was drawn was not put on the jury, but another person was summoned, though inadvertently, and substituted for the one drawn. The real effect is as though they had different names. That their names were the same had the tendency to prevent defendant from taking notice that the person summoned and who appeared was different from the one drawn.

If a man with a different name had been substituted and called by the substituted name, defendant could have explained with difficulty a failure to note such change. In the case of Irwin v. State, 220 Ala. 160, 124 So. 410, the defendant was found to...