Waller v. State

• Decision Date: 07 January 1947
• Docket Number: 1 Div. 528.
• Citation: 28 So.2d 815,32 Ala.App. 586
• Parties: WALLER v. STATE.
• Court: Alabama Court of Appeals

28 So.2d 815

32 Ala.App. 586

WALLER v. STATE.

1 Div. 528.

Alabama Court of Appeals

January 7, 1947

D R. Coley, Jr., of Mobile, for appellant.

Wm N. McQueen, Atty. Gen., and Bernard F. Sykes, Asst. Atty Gen., for the State.

Charges 2, 3, 10, 13, 15 and 16, refused to defendant, in effect predicate an acquittal upon a finding that the prosecutrix consented to the act charged.

Other charges refused to defendant are as follows:

'4. The Court charges the jury that the only foundation for a verdict of guilty in this case is that the entire jury shall believe from the evidence beyond a reasonable

doubt and to a moral certainty, that the defendant is guilty as charged in the indictment, to the exclusion of every probability of his innocence, and every reasonable doubt of his guilt, and if the prosecution has failed to furnish such measure of proof and to so impress the minds of the jury of his guilt, they should find him not guilty.

'6. The Court charges the jury that the burden of proof is upon the prosecution to prove every material element of the offense charged beyond all reasonable doubt, and if from any part of the evidence you have a reasonable doubt of the defendant's guilt, it is your duty to give him the benefit of the doubt, and you should not find him guilty.

'9. The Court charges the jury that if, after looking at all the evidence in this case, and considering it fully, your minds are left in such a state of uncertainty that you cannot say beyond a reasonable doubt that the defendant is guilty of the offense charged, then this is such a doubt as would entitle the defendant to an acquittal, and you should so find.

'20. The Court charges the jury that even though you believe from the evidence that the defendant is probably guilty, still you cannot convict him if, under any reasonable hypothesis or explanation of the evidence he could be innocent.

'21. 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.'

CARR Judge.

In the court below the appellant was convicted on a charge of rape.

On April 22, 1946, the court made an order that the venire in the case should consist of one hundred persons, including the jurors drawn for the regular jury for the week. It appears in the order that there were seventy regular jurors and thirty additional names were drawn. The case was set for trial on the 1st day of May, 1946.

On the day set for trial, appellant's attorney moved for a continuance of the cause on the ground of the absence of a material witness. The motion was overruled and a continuance denied.

Counsel for defendant then made a motion to quash the jury venire. Sufficient for our treatment, we here quote the fourth ground of said motion: 'Because the Court, in the absence of the Defendant or his Attorney, and prior to the date set for the trial of this cause, and not during the process of qualifying and organizing the jury for the Defendant's trial, exercised the right to excuse from jury service on the special venire summoned to try this cause, to-wit, six (6) jurors whose names appeared on the list of special jurors served upon the Defendant.'

Testimony was taken in support of the motion, and it appears without conflict that on April 30th, the day just prior to the setting date of the case at bar, the trial judge excused six jurors from the regular venire, drawn for the week in which the instant case was set. This action was taken without the presence or consent of either the defendant or his attorney.

A total of forty-six jurors qualified to try the case, and from this number a jury was selected.

This identical question has already been considered by our appellate courts and determined favorably to the present contentions of appellant.

Justice Brown, writing for the Supreme Court in Stinson v. State, 223 Ala. 327, 135 So. 571, 574, observed: 'That statute (section 8614) has a field of operation, and authorizes the court, in the process of impaneling the regular juries, to excuse a juror from the regular service, still when construed in pari materia with sections 8644, 8645, the power to excuse from service on a special venire in a capital case must be exercised by the court on the day set for the trial during the process of qualifying and organizing the jury for the defendant's trial, when defendant is having his day in court, and may know the facts underlying the court's rulings and may protect his interest by proper exceptions.'

The three sections above referred to appear, with slight addenda, in our present code as Title 30, Sec. 5, Sec. 63, and Sec. 64.

In the opinion in Smallwood v. State, 235 Ala. 425, 179 So. 217, 218, the Supreme Court, speaking through Justice Foster, said: 'The merits of this contention as a reversible error were fully discussed in Stinson v. State, supra. It is there asserted that the defendant on trial for a capital case has a right to have excuses from jury service heard and determined at the time as a part of the trial, so that he may know the facts on which the excuse is based, and be heard with respect to it, and have exception to the ruling if he desires to do so. While it was held that the question was not properly presented for review by this court, the rights of defendant were fully argued and explained, and were not observed on this trial. We cannot say that there was no injury. It is a mandatory requirement whose failure of observance constitutes reversible error when duly presented. Reese v. State, 228 Ala. 132, 152 So. 41. The defendant cannot know on what ground the court excused the juror. The excuse should have been made and acted on as a part of the selection of the jury on the day of trial. We think a failure is reversible error when the situation is properly brought to the attention of the trial court on the day of trial by a proper motion and an exception.'

A like holding is announced in Harden v. State, 26 Ala.App. 94, 155 So. 719; Crump v. State, 28 Ala.App. 103, 179 So. 392; Dodd v. State, 30 Ala.App. 96, 1 So.2d 670, certiorari denied 241 Ala. 152, 1 So.2d 671.

The Assistant Attorney General does not question the fact that the instant inquiry presents an unsurmountable authoritative precedent, but insists that in the case at bar the defendant should be charged with waiver. We cannot accede to this position.

As disclosed by the record, if the defendant is to be held to have waived the right to have been present either in person or by counsel when the six jurors were excused, it is based only on the fact that his attorney was a member of the local bar and knew that it was a custom and practice which was usually followed to impanel the regular jurors drawn for the week on Tuesday morning. The defendant was confined in jail and, of course, could not have been present in court unless brought there by an officer.

The Constitution guaranteed to the defendant in this case a right of trial by a jury. This sacred security embodied the privilege to have the jury selected and impaneled as the law prescribes. The responsibility rested primarily upon the trial court to insure this protection. Under the circumstances in the instant case, the duty was imposed on him to assure the presence in court of either the defendant or his attorney before considering the matter of excusing the jurors from the regular venire who were included in the number from which a jury was to be selected to try the appellant. The court below did not conform to the rulings of our appellate courts, and reversible error must be charged.

We are not convinced that the primary court abused his discretion in denying a continuance of the cause. Curtis v. State, 9 Ala.App. 36, 63 So. 745; Bedsole v. State, 28 Ala.App. 27, 177 So. 308.

Objections were interposed to the introduction of the wearing apparel of the alleged assaulted person which undisputably she had on at the time it was contended she was raped. There was abundant evidence to support the position of the State that blood-flow was very free from the injuries the young lady sustained. She was taken home by a friend in a car. A towel was used to protect the automobile seat from bloodstains. The towel so used was also permitted in evidence, over the objections of appellant's counsel. With the exception of the girl's shoes and topcoat all of these articles bore evidence of blood, according to the testimony. It was made clear by witnesses that all of this apparel was turned over to the authorities and was in substantially the same condition as it was when the young lady disrobed at her home a short time after the alleged commission of the offense. We hold that this evidence was a material part of the factual inquiry. Puckett v. State, 213 Ala. 383, 105 So. 211; Reedy v. State, 246 Ala. 363, 20 So.2d 528; Smith v. State, 247 Ala. 354, 24 So.2d 546; Gilbert v. State, 28 Ala.App. 206, 180 So. 306; Allford v. State, 31 Ala.App. 62, 12 So.2d 404.

More urgent insistence is made in brief of counsel that particularly the shoes and topcoat, since they bore no evidence of blood or disfigurement, were erroneously allowed in evidence. The case of Kabase v. State, 31 Ala.App. 77, 12 So.2d 758, is cited in support of this position. It will be noted in the Kabase case, supra, that the slippers had been deheeled and it was not made to appear when this happened. It is a conclusion of logic and reason that, if the offered articles bear signs of injury, stains or defacements, this condition must be shown to be attributable to or connected with the alleged crime.

The prime objection made to the introduction in evidence of the shoes and coat was based on the...