Tiner v. State

• Decision Date: 14 July 1960
• Docket Number: 4 Div. 949
• Citation: 271 Ala. 254,122 So.2d 738
• Parties: Cecil TINER v. STATE of Alabama.
• Court: Alabama Supreme Court

Page 738

122 So.2d 738

271 Ala. 254

Cecil TINER v. STATE of Alabama.

4 Div. 949.

Supreme Court of Alabama.

July 14, 1960.

Rehearing Denied Sept. 15, 1960.

J. Hubert Farmer, Dothan, and Jack W. Smith, Geneva, for appellant.

John Patterson, Atty. Gen., and Geo. D. Mentz, Asst. Atty. Gen., for the State.

COLEMAN, Justice.

In Geneva County, appellant was indicted, tried, convicted, and sentenced to death by electrocution, for murder in the first degree of James Cuthbert Woodham by shooting him with a gun or pistol. At the time of the shooting Woodham was sheriff of that county. He was shot through the chest about 8:00 p. m. August 5, 1957, and died on the 8th day of the same month at 5:30 a. m.

The evidence for the state tended to show that a two-tone Buick automobile occupied by two men was in the town of Hartford, in Geneva County, early in the evening of August 5, 1957; that the automobile stopped at the hospital in Hartford and the two men entered the hospital and carried away an iron safe containing narcotics; and that defendant was one of the men who removed the safe. Next morning the safe was found in a field a few miles west of Hartford. It had been opened and most of the narcotics removed. Some narcotics were left at the place where the safe was found. On the night the safe was taken, a two-tone Buick occupied by two men passed a filling station in the town of Geneva where the sheriff had stopped and was talking. The deceased got in his car and pursued the Buick. A few miles south of Geneva the sheriff's car overtook the Buick and both cars stopped with the sheriff's car a short distance ahead of the Buick. Deceased got out of his car, met the driver of the Buick between the cars, and both came back to the driver's side of the Buick and had a conversation. The sheriff searched the trunk of the Buick, then went around to right side of that car. Mrs. Ganey, a witness for the state, on the porch of her home about 75 yards from the car, heard a shot and went back into her house. Later she heard more shots. She did not identify defendant. The Buick drove off. The sheriff was found shot and taken to the hospital where he died. A car seat, cushion, and some narcotics were found where deceased was shot. Defendant was arrested the following morning at a filling station three and a half miles south of Pensacola. When arrested, defendant had in his mouth two fifty dollar bills with two small white tablets folded in the bills. On cross-examination defendant admitted that the tablets were morphine. A two-tone Buick car with Texas license plate was found on highway twelve miles from place of arrest. No one was present at the car. Defendant, on cross-examination admitted owning a Buick automobile introduced in evidence and shown to the jury.

The confessions of defendant introduced by the state were to effect that after taking the safe, defendant and companion drove out on a dirt road outside Hartford where they removed some narcotics from safe and took a 'shot'; then they drove through Geneva and were stopped by a car pulling ahead of them; the sheriff looked in trunk of their car and went to its right side; defendant helped sheriff pull the back seat over on front seat; when sheriff started to pull the loose seat out of the car, he found a paper sack with some narcotics in it which had been on the front seat of the Buick; as the sheriff started to pull sack and seat out of the car, defendant pulled out his gun and shot the sheriff one time; as the sheriff fell he drug car seat and sack with him; sheriff started shooting and defendant ran to left of Buick; defendant fired three more shots; sheriff started towards his car and defendant ran to Buick and drove off after picking up his companion; defendant and companion drove south into Florida; they drove on dirt roads and threw the gun over a wooden bridge at unknown spot; later defendant and companion left the Buick and took with them the one remaining bottle of morphine which was later left on top of filling station where defendant was apprehended. Defendant further said that the 1956 Buick which had been found was the car used in all this and was his car.

Only witness for defendant was himself. We quote from his brief: 'His testimony was to the effect that he took some kind of narcotics in Pensacola, Florida about 11 a. m., August 5, 1957; that during the years for the past thirteen years he had taken all kinds of narcotics, including much cocaine; that when he had been without * * * narcotics for several hours, his memory was hazy, and he developed hallucinations; that he did not know where he was or what he did from late afternoon August 5th, until the next morning, when he was arrested at a filling station near Pensacola, Florida; that when he 'needed' a shot of dope badly, he was likely to take too much, and go into a stupor for several hours.

'He further testified that when he was a small child, his father and mother separated, and he went to live with his grandmother * * * in Dallas, Texas; that when he was about twelve years of age he was stricken with tuberculosis of the bone; that he spent most of some fifteen months in a Methodist Hospital in Dallas; and during a considerable part of this time, his leg was in traction and that he suffered severe pains on account of such traction; that during this time he was given injections of morphine for this pain sometimes several times a day; that he learned what was being given to him by the nurses; * * *.

'That after his discharge from the hospital, he had a craving for the narcotics he had been receiving; that he began then the use of narcotics of various kinds; that this use continued to varying degree from then until his arrest for the killing of Sheriff Woodham; that he had served two sentences for burglary, each for breaking into drugstores and stealing narcotics; that during one sentence he took a six months Bible course in an effort to break the habit; that he got off it for awhile, but then got back on it.

'On cross-examination Appellant denied killing the sheriff, saying that he just knew that he did not wish to hurt anybody; but testified further that he stole money with which to purchase narcotics, principally on the blackmarket; that at the time of his arrest, he was using large quanities (sic, quantities) that it was costing him One Hundred Dollars to Two Hundred Dollars per day to keep himself supplied on the black market.'

Motions to Quash.

Defendant filed a motion to quash the indictment and a motion to quash the venire. The latter motion rested on the following ground:

'It affirmatively appears that the names of a large number of citizens who possess the qualifications required by law of jurors have been intentionally and unlawfully omitted from the jury roll and intentionally and unlawfully left out of the jury box from which roll and out of which box the names of the jurors to try this defendant on said charges and at said time, were so taken and so drawn as aforesaid.'

The motion to quash the indictment raised the same objection as to the grand jurors who found the indictment.

To each of defendant's motions, the state filed a demurrer and motion to strike. The trial court sustained the state's demurrers and motions to strike and overruled defendant's motions to quash.

The state raised the objections that the motion to quash the indictment came too late after the plea of not guilty and that the attack on the indictment should have been made by plea in abatement. We pretermit consideration of those insistences, however, because the objection to the filling of the jury box raised by the motion to quash the indictment is the same objection raised by the motion to quash the venire, and the sufficiency of the averments of the latter motion must be determined.

Appellant relies on Cook v. State, 32 Ala.App. 54, 21 So.2d 446, and Inter-Ocean Casualty Co. v. Banks, 32 Ala.App. 225, 23 So.2d 874, to show error in the trial court's refusal to grant either of the motions to quash in the case at bar.

The record on file in Cook v. State, supra, discloses that Ground 3 of the motion to quash the indictment in that case alleges in detail, on a page and a half of transcript paper, the facts which constituted the failure to select the venire, from which the grand jury in that case was drawn, in accord with the statutes providing for the selection and empaneling of juries.

In Inter-Ocean Casualty Co. v. Banks, supra, the motion to quash the venire covers two and a half transcript pages of the record in that case, and alleges in detail that the venire was drawn from a box which contained names from only one of the former judicial divisions of the county. The facts alleged clearly established the fraud charged, the pleading did not state merely conclusions.

The sufficiency of the averments of a motion to quash the indictment and a motion to quash the venire on the ground of fraud in selecting or drawing the grand jury and petit jury was before this court in Wimbush v. State, 237 Ala. 153, 186 So. 145. The averments of the motions are not set out in the opinion. In the original record on that appeal, it appears that both motions in that case contained, among others, the following statement of supporting grounds:

'3. For that the jurors, who have been summoned this week, are not impartial jurors in that male citizens who belong to that class of trade known as working trade, such as farmers, miners, independent carpenters, and independent businesses, and those who are employed by the United States Government on relief projects, and those who are unemployed are systematically kept from the jury roll and out of the jury box in Jefferson County.

'* * * * * *

'5. For that the jurors summoned to serve this week are not free from bias or prejudice because of the fact that they are composed principally of those of the rich and highest in station to the discrimination of male citizens who are...