Vernon v. State

• Decision Date: 28 March 1940
• Docket Number: 6 Div. 460.
• Citation: 196 So. 96,239 Ala. 593
• Parties: VERNON v. STATE.
• Court: Alabama Supreme Court

196 So. 96

239 Ala. 593

VERNON v. STATE.

6 Div. 460.

Supreme Court of Alabama

March 28, 1940

Rehearing Denied May 21, 1940.

Appeal from Circuit Court, Jefferson County; J. Russell McElroy Judge.

Joe Vernon was convicted of murder in the first degree, and he appeals.

Affirmed.

Evidence held sufficient to justify a conviction of first degree murder.

The following charges were refused to defendant:

"3. The court charges the jury that the clothes worn by the defendant at the time of his arrest and while incarcerated in the jail, and during the time the alleged confession was obtained, are in evidence in this case, and the jury may examine these clothes and see whether the spots on the clothes are blood spots, and if the jury believe they are the same clothes, and in the same condition as at the time he was alleged to have been beaten to enable the officers to obtain the alleged confession that has been introduced in evidence, they may look to that fact, if it be a fact in determining what weight they will give to the State's witnesses, Bullard and Reese, and what weight they will give to the confession to have been made by this defendant.

"4. The court charges the jury that if there is one single fact proved to the satisfaction of the jury which is inconsistent with the defendant's guilt, this is sufficient to raise a reasonable doubt, and the jury should acquit him.

"9. The court charges the jury that if the evidence for the state consists of testimony as to the truth of which the jury have a reasonable doubt, the jury must not convict the defendant although they may not believe the testimony of defendant's witnesses.

"15. The court charges the jury that if they have a reasonable doubt growing out of the evidence, as to whether the killing was done deliberately, or as to whether it was done premediately, then they cannot find the defendant guilty of murder in the first degree; and if they have a reasonable doubt growing out of the evidence, as to whether the killing was done out of malice, then they cannot find the defendant guilty of murder in either degree, but only of manslaughter at the most; and if, after considering all the evidence, the jury have a reasonable doubt as to the defendant's guilt of manslaughter, arising out of any part of the evidence, they should find the defendant not guilty.

"16. The court charges the jury that a killing in sudden passion, excited by sufficient provocation without malice, is manslaughter, not because the law supposes that this passion made the slayer unconscious of what he was about to do, but because it presumes that passion disturbed the sway of reason and made him regardless of her admonition.

"17. The court charges the jury that if the jury believe from the evidence, that there was a plot between Joe Vernon, the defendant and L. C. Berry, to rob Bennie Montgomery, and if the killing was after that plot had been consummated, and from a cause having no connection from the common objective of the plot, and was by L. C. Berry alone, the jury cannot convict the defendant."

Cora R. Thompson, of Birmingham, for appellant.

Thos. S. Lawson, Atty. Gen., and Prime F. Osborn, Asst. Atty. Gen., for the State.

BROWN Justice.

The appellant, Joe Vernon, of the negro race, was prima facie regularly indicted in the Circuit Court of Jefferson County, and on his arraignment and trial was represented by able and experienced counsel of his own selection and employment, and on said trial was convicted as particeps criminis in the murder of Bennie Montgomery.

On said trial numerous and sundry questions were raised and reserved for review on this appeal, but no objection was made and no question was raised on or before the trial as to the formation of the grand jury that presented the indictment or its legality. Nor was there any objection to the venire for his trial or the formation of the petit jury selected and empanelled for this trial. The indictment, as the record shows, was returned and filed in open court November 12, 1938; the defendant was arraigned and entered a plea of not guilty, December 31, 1938, and the case was set specially to be tried on January 9, 1939. The trial was entered upon on the day set therefor without objection or motion for continuance, or motion for postponement; the verdict of guilty was rendered on the 10th of January, and the judgment entered and sentence pronounced on the 12th of January, 1939.

On the 9th of February, 1939, the defendant filed a motion for new trial, cataloguing 21 grounds, mostly for alleged errors in refusing special instructions, rulings on evidence and alleged misconduct of the solicitor in argument.

The 8th ground: "For that the verdict was against the weight of the evidence."

9. "For that it was error to force the defendant to trial in a cause of this serious a nature, by trying it before it [its] turn on the docket."

19. "For that the defendant, Joe Vernon, being a negro, it was error to force the defendant to be compelled to select from a venire composed solely of white men."

20. "For that it invaded the Constitutional rights of the defendant, Joe Vernon, in that he was forced to select the jury from men composed entirely of white men."

21. The same as 20.

The motion was regularly continued from time to time until the 1st of April, 1939, when the defendant filed additional grounds numbered from 22 to 38, some of which go to the question stated more fully in ground 38, than any other.

"For that, the defendant, being a negro and indicted for the murder of a white man; that at least one-third of the population of the County from which the Grand and Petit Juries were drawn were members of the negro race, and that the general venire contained no names of negroes when the Grand Jury that indicted petitioner was drawn; or that there were so few as to be a denial of the rights of petitioner when considered in conjunction with the number of negroes and the number of white people drawn on the venire or the number that ought to have been drawn to preserve a proper ration [ratio] to be a compliance with the 14th Amendment to the Constitution of the United States, and that the State officers charged by law with the duty of providing names for the general venire had 'deliverately excluded therefrom, or so small a number had been drawn as to be an exclusion, of any negroes qualified to serve as Grand or Petit Jurors, and had done so systematically, unlawfully and unconstitutionally for a long period of time solely and only because of their race and color' was denied the equal protection of the laws guaranteed him by the 14th Amendment of the Constitution of the United States."

The motion for new trial was then continued until the 11th of April, and on that date, on motion of the solicitor the circuit court expunged or struck from the original motion said grounds 19, 20 and 21, and struck from the files said paper containing grounds 22 to 38, inclusive, and to these rulings the defendant reserved separate exceptions. The motion for new trial was then overruled.

It is well settled that objections going to the formation of the grand jury which presented the defendant must be made by plea in abatement before pleading not guilty, and after so pleading, any such objection is addressed to the irrevisble discretion of the trial court. Nixon v. State, 68 Ala. 535; Jackson v. State, 74 Ala. 26; Hubbard v. State, 72 Ala. 164.

So, also, that objections going to the venire of the petit jury or any member thereof, must be made before entering upon the trial of the case on its merits under the defendant's plea of not guilty, and a failure to make such objections constitutes a waiver. Peterson v. State, 227 Ala. 361, 150 So. 156. This rule has its exceptions as when the defendant is misled by the false oath and fraud of a venireman, and thereby induced to accept such venireman on the jury. 20 R.C.L. 242, § 27.

It is not permissible for the defendant, who has not been so misled, to participate in the selection of the jury without objections, speculate on winning a favorable verdict, and failing to do so, allow him to raise such questions on a motion for new trial. Simpson v. Golden, 114 Ala. 336, 21 So. 990; Hoskins v. Hight, 95 Ala. 284, 11 So. 253; Barron v. Robinson, et al., 98 Ala. 351, 13 So. 476; Fulwider v. Jacob, 221 Ala. 124, 127 So. 818.

We observe that there is nothing in the record going to show that defendant and his counsel were not fully informed and had knowledge of the facts averred in said several grounds when he entered his plea and entered upon the trial. See Fulwider v. Jacob, supra.

Applying these well-settled rules of law, we are not of opinion that error was committed by the circuit court in striking from the motion for new trial the grounds that sought to question the formation of the grand jury that returned the indictment, and the petit jury selected and empanelled for the defendant's trial.

As for the ground of the motion for new trial "For that the verdict was against the weight of the evidence," the rule applicable is: "Unless, after allowing all reasonable presumption of its [the verdict's] correctness, the preponderance of the evidence against the verdict is so decided as to clearly convince the court that it is wrong and unjust," the trial court will not be held to have erred in overruling the motion. Caldwell v. State, 203 Ala. 412, 84 So. 272, 278; Jordan v. State, 225 Ala. 350, 142 So. 665.

After full consideration of the evidence we are of opinion that the evidence is sufficient to support the verdict, and as for this ground, the motion was overruled without error.

The other questions argued, so far as they merit treatment, were raised during the trial and appear in the...