Walden v. State

• Decision Date: 18 June 1940
• Docket Number: 7 Div. 528.
• Citation: Walden v. State, 29 Ala.App. 462, 198 So. 261 (Ala. App. 1940)
• Parties: WALDEN v. STATE.
• Court: Alabama Court of Appeals

198 So. 261

29 Ala.App. 462

WALDEN v. STATE.

7 Div. 528.

Court of Appeals of Alabama

June 18, 1940

Rehearing Denied Aug. 6, 1940.

Appeal from Circuit Court, Etowah County; W. M. Rayburn, Judge.

Henry Walden was convicted of murder in the second degree, and he appeals.

Affirmed.

Certiorari denied by Supreme Court in Walden v. State, 198 So 264.

McCord & Miller and Wm. Hubert Burns, all of Gadsden, for appellant.

Thos S. Lawson, Atty. Gen., and Willard McCall, Asst. Atty. Gen for the State.

RICE Judge.

Appellant was put on trial under an indictment charging him with the offense of murder in the first degree; it being alleged specifically, that he "unlawfully and with malice aforethought, killed Doyle Davis by shooting him with a pistol or gun, contrary to law and against the peace and dignity of the State of Alabama." He was convicted of the offense of murder in the second degree, and his punishment fixed at imprisonment in the penitentiary for the term of ten years.

It was without dispute that appellant, the chief of police of the town of Altoona, in an altercation with deceased, Doyle Davis, and his brother, Verdell Davis, shot them both with his pistol. And that, later, Doyle Davis died.

The State's testimony was to the effect that the shooting of Doyle Davis (and, for that matter, though not of present interest, Verdell Davis) was entirely unjustified. That on behalf of appellant was to the effect that he acted in self-defense, as that term was fully made clear to the jury by the court.

All the issues involved were strictly for the jury.

We are not unmindful of our duty under the terms of Code 1923, Sec. 3258. And we have endeavored to perform it.

But appellant was represented, below, as he is here, by able counsel. And they have filed with us a brief which evinces careful study of the record, with a view to pointing out errors of the lower court which demand a reversal of the judgment of conviction.

We feel warranted in confining our remarks to the rulings urged upon us as error, prejudicial to appellant, in said brief. And shall do so.

It is first insisted, as we understand the argument, that the trial court committed reversible error in overruling appellant's motion to quash the venire--general and special--as for that the court excused six of the jurors, outside the presence and hearing of appellant. But the record bears out no such contention.

Much argument is devoted by astute counsel for appellant--who frankly stated at the beginning of the proceedings that, as this was a capital case, they deemed it necessary "to take advantage of every legal technicality"--to this matter of the court's excusing these six jurors.

The bill of exceptions contains a very long--and, we assume, complete--colloquy between the court, counsel representing defendant (appellant), and counsel representing the State,--with rulings, wherever called for, always in favor of defendant's contentions.

Distinguished counsel for appellant, in their brief filed here, make the astonishingly unkind remark that: "If this court will read all the conversations between the attorney for the appellant and the court on the various matters which came up over the selection of the jury, this court will be convinced that the trial court was, at said time, greatly confused and made contradictory statements." And this further, equally unkind: "In all fairness to the court, we are led to believe that this was unintentional on his part but was made because the trial court was nervous, was new on the bench and did not take sufficient time to thoroughly go into the matter."

And then counsel, aforesaid, solemnly asseverate that it is their opinion that the "arbitrary action of the trial court" had the effect to lead "the jury to believe that the trial court really wanted the appellant convicted."

Now this court has read, carefully, "all the conversations between the attorney for the appellant and the court on the various matters which came up over the selection of the jury;" and, while it may be true that the learned trial court was "nervous and new on the bench,"--all judges must at some time be "new on the bench," and a great many of us are "nervous," when dealing with matters affecting the very life of a human being--as here--yet we are far from persuaded that he "did not take sufficient time to thoroughly go into the matter."

To the contrary, it is clear to us that the court did "take sufficient time to thoroughly go into the matter." And his seeming "contradictory statements" were plainly caused by his manifest desire to accede to every request of appellant's aggressive counsel, and accord to appellant every debatable right, to which he was entitled under the law. The entire colloquy, and the rulings concomitant, convince us that there was nothing of which appellant could legitimately complain.

The alert manner in which the court retraced--at appellant's complaint--and corrected, any questionable step, persuades us that, so far from leading the jury to believe that the court "really wanted the appellant convicted," they must have been impressed that the court was painstakingly cautious to see that his rights were protected. The impression abides with us, from a reading of the entire proceedings, that able counsel for appellant were simply--but in the strict discharge of their duty as they saw it--making good their expressed determination "to take advantage of every legal technicality."

The cases of Crump v. State, 28 Ala. App. 103, 179 So. 392; Stinson v. State, 223 Ala. 327, 135 So. 571, and Smallwood v. State, 235 Ala. 425, 179 So. 217,

cited and urged upon our consideration by appellant's counsel, are each without application here. And this because the acts of the court in connection with the selection of the jury condemned in those cases were not parallelled in the instant case.

After the jury lists were made up, and appellant and the State were engaged in alternately striking names from it under the law it was discovered that said lists contained the name of one juror who had been regularly and legally excused from service--he being a person under the age of twenty-one years. The trial court ordered both the parties to strike out this person's name, and proceed with their selection of the jury. And appellant moved for a continuance and objected...