Ware v. State

• Decision Date: 17 December 1914
• Docket Number: 755
• Citation: 12 Ala.App. 101,67 So. 763
• Parties: WARE v. STATE.
• Court: Alabama Court of Appeals

67 So. 763

12 Ala.App. 101

WARE v. STATE.

No. 755

Court of Appeals of Alabama

December 17, 1914

Rehearing Denied Jan. 12, 1915

Appeal from Criminal Court, Jefferson County; William E. Fort Judge.

Thompson Ware was convicted of robbery, sentenced to 15 years imprisonment, and he appeals. Affirmed.

The facts sufficiently appear. The oral charge of the court set out on page 60 of the record is as follows:

Evidence may be offered tending to show flight of a defendant, and, when it is offered by the state, it may be considered by the jury in connection with the other evidence in the case. In the first place, where evidence is offered tending to show defendant's flight, that he went away from the scene of an alleged offense, it would be for the jury to say was it a flight as a matter of fact. You would have to determine from the evidence whether it was a flight or not, and then you would further consider such evidence in the light of all the other evidence in the case, including any explanation or statement which may be offered by defendant of the alleged flight, and whether it was a reasonable explanation or not, and all the other evidence in the case, giving each part of it such weight as you think it entitled to receive.

The oral charge on page 59 of the record is as follows:

It is the law of Alabama in felony cases, and by felony cases the law means an offense against the criminal law which is punishable capitally or by imprisonment in the penitentiary so in felony cases all parties who are concerned in the commission of the felony, whether they directly commit the act constituting the felony, or aid and abet in its commission, are held to be equally responsible; so that whether a party commits by himself the entire act which constitutes a felony, or if he is concerned with another in its commission, if he aids another in his commission, if he assists another in its commission by word or deed, either by words of encouragement, assistance, or support, or by actions giving encouragement, assistance, or support, either party under these circumstances would, in the eyes of the law, be held to be equally responsible; that is, so far as the personal guilt or innocence is concerned. The question of punishment is one which is always to be fixed by the jury entirely within their own discretion.

The following charges were refused defendant:

(X) If you believe the evidence in this case, you cannot find that there was any flight on the part of this defendant.

(Z) I charge you that you cannot find that there was any flight by defendant in this case from a consciousness of guilt or a desire to escape arrest or punishment.

(3) Before you can find defendant guilty, you must be satisfied to a moral certainty, not only that the proof is consistent with defendant's guilt, but that it is wholly inconsistent with every other reasonable conclusion, and, unless you are so satisfied that you would each venture to act upon that decision in the matters of the highest concern to your own interest, then you must find defendant not guilty.

(15) If the testimony in this case, in its weight and effect, be such as that two conclusions can be reasonably drawn from it, the one favoring defendant's innocence, and the other tending to establish his guilt, law, justice, and humanity alike demand that the jury should adopt the former and find defendant not guilty.

(17) In all criminal prosecution, the accused may give evidence of his previous good character, not only where a doubt exists on the other proof, but even to generate a reasonable doubt of his guilt.

(28) If there is a probability of defendant's innocence, he should be found not guilty.

(30) The legal presumption of innocence is to be regarded by the jury in every case as a matter of evidence to the benefits of which accused is entitled, and, as a matter of evidence, it attends the accused until his guilt is by the evidence placed beyond a reasonable doubt; therefore you must acquit.

(35) The humane provision of the law is that, upon the evidence, there should not be a conviction unless to a moral certainty it excludes every reasonable hypothesis other than that of the guilt of the accused. No matter how strong may be the fact, if they can be reconciled with the theory that some other person may have done the act, then the guilt of defendant is not shown by that full measure of proof which the law requires.

(42) The defendant's good character may be considered in connection with all the other evidence in the case, and, if it generate a reasonable doubt in the minds of the jury as to defendant's innocence, they must acquit him.

(43) The jury must find from the circumstances relied on in this, in order to convict that there is no other reasonable conclusion to be reached but that of defendant's guilt, and, if you do not so find, then the state has failed to make out a case, and it is your duty to acquit.

(K) You will be permitted to take the showing or statement of the testimony of the witness Brown which was introduced in evidence in this case to the jury room with you, along with the indictment and other papers in the case, and, in considering the evidence in this case, it is permissible for you to read such showing or sworn statement of said witness Brown, and to discuss the connection with all the other evidence in the case.

Erle Pettus, of Birmingham, for appellant.

R.C. Brickell, Atty. Gen., and W.L. Martin, Asst. Atty. Gen., for the State.

THOMAS J.

The defendant was charged with robbery, an offense punishable capitally, and was convicted and given a sentence of 15 years.

The bill of exceptions contains the following statement with respect to the organization of the petit jury for the trial, to wit:

"John T. Palmer was a regular juror who had been organized and impaneled as such for the trial of capital cases for the week, among which was the case of the state against [the present defendant] Thompson Ware. This juror had been in attendance all the week from Monday, May 18th, till Thursday, May 21st [the day of the present trial]. All of the jurors, both regular and special, for the week were called around and qualified by the court separately for the trial of the present case. When the name of the above-named juror was called to be specially qualified for said case, he did not answer, and the bailiff was directed to, and did, call him from the court door. No other juror or person in the courtroom had seen him on the day of the trial, and he failed to answer to repeated calls. The court thereupon recessed for a few minutes, in response to defendant's objection to proceeding with the trial, and ascertained by telephoning to the office of the said juror that he had left early on the morning of that day (May 21st) and was out of the state, and that he would not return to the state till the next week. The party giving this information claimed to have gone to the train with said juror, and claimed that he had an emergency call out of the state."

And then, after reciting, among other things, that "the juror was absent without excuse, without leave of the court, and without the consent of defendant," and that "the defendant moved to quash the venire on the ground of the absence of the juror," and that the motion was overruled, and that defendant excepted, the bill of exceptions continues:

"The court then ordered the name of said juror, Palmer, to be stricken from the list of jurors which had been at the time of the trial furnished the defendant for the purpose of selecting a jury; and the name of the said juror, Palmer, was so stricken from the list after the same had been furnished to the defendant to strike the jury, and after the cause had been peremptorily called for trial; and the name of the juror was not stricken by the solicitor for the state, nor by the defendant or his attorneys, but was thus stricken off by order of the court because said juror did not answer when his name was called, but appeared to be absent without excuse, and was reported to have left the city without leave of court; and the defendant then and there duly objected and excepted," etc., to the action of the court in so ordering the striking of the name of the juror and in forcing defendant to trial.

Our jury law (Gen. and Loc.Acts 1909, p. 305) clearly relieves the action of the court, if otherwise it would have been erroneous, of any error, in that, in sections 17 and 32 thereof, it is expressly provided that:

"If the sheriff fails to summon any jurors, or if any person summoned fails or refuses to attend the trial, *** none, or all of these grounds shall be sufficient to quash the venire, or continue the cause."

The juror here, though it does appear that he did attend the other trials that had been had in the court on the several days before defendant was tried, "failed to attend defendant's trial." While it is true that the statement made to the court over the telephone by the person at the juror's office to the effect that the juror had left the state was, since not sworn to, mere hearsay, and could furnish no legal basis, therefore, for finding such to be the fact, yet it was not necessary for the court, in order to proceed legally to the trial without the juror, to find that the juror had left the state. It is, as seen, entirely sufficient to this end that the juror "fails to attend the trial," which fact may be satisfactorily inferred from the failure of the juror to answer when, as here, his name is duly called in the court and at the door of the court. Even before the statute cited, the court was not bound to send for a juror, summoned in a capital case, who fails to answer when his name is called, although it be shown that the juror resides in the city where the court is held and...