Whitehurst v. State

• Decision Date: 25 September 1973
• Docket Number: 4 Div. 153
• Parties: Joseph E. WHITEHURST v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 152

288 So.2d 152

51 Ala.App. 613

Joseph E. WHITEHURST v. STATE.

4 Div. 153.

Court of Criminal Appeals of Alabama.

Sept. 25, 1973.

Rehearing Denied Oct. 30, 1973.

Rogers, Howard, Redden & Mills, Birmingham, for appellant.

William J. Baxley, Atty. Gen., and J. Victor Price, Jr., Asst. Atty. Gen., for the State.

CATES, Presiding Judge.

Murder in the second degree (uxoricide): sentence, fifteen years imprisonment.

The essence of the State's case against Whitehurst is encapsulated in a statement related to the jury through the testimony of Marlin Dillard, a detective in the Dothan Police Department. Dillard's testimony on this was:

'February the 5th of '71, he stated that he and his wife had left the office at noontime and went over to this apartment, apartment 51, Carriage House Apartments, to get away from the children for awhile. That a friend of his that was working with him had this apartment rented and that he--Mr. Whitehurst, was using the apartment for a while. (sic) And he further stated that around 5:00 or 5:30, in that neighborhood, that he left the apartment, left her there by herself to go back to his office to exchange automobiles, other than the one that they came over on (sic), to the apartment. And he was gone about 30 or 40 minutes. And before he left the apartment, that there was a fifth of vodka sitting on the dining room table with the exception of a couple of drinks that had been taken out of it, that it was still all in contact; and when he returned, had been taken out of it, that it was still all in contact; and when he returned, the bottle was empty; and that he assumed that she had drank it, or said she was in a drunken condition when he returned; that they got in an argument and a fight and he hit her with his fists. And that's all he would admit hitting her with was just his fists. And that--he didn't say what time this took place, right then or a little bit later, and that he had lain down on the floor beside of her and went to sleep and when he awoken, that he realized that something was wrong with her. She wouldn't respond to him calling her.'

A toxicologist testified as to his post mortem examination of Mrs. Whitehurst's body, in part:

'I first opened the thoracic and abdominal cavities with a Y incision, on the anterior portion of the body, and I found evidence of recent bruises in the anterior abdominal wall over the stomach area.

'I found an estimated 1/2 ounce or 15 cc's or liquid blood in both the left and right lung cavities. The abdominal cavity, or the stomach area, contained large quantities of liquid and clotted blood.

'Inspection of the rib cage revealed ribs #2 and #3 on the right front chest were broken. Ribs #5 through #9 on the right side were fractured. Rib #10 was fractured twice on the right rear back. Ribs #4 through #9 were fractured on the left front of the chest. Ribs #8, #9 and #10, were fractured on the left side, and rib #10 was also fractured on the left rear side of the body.

'I examined the lungs and found them to be extremely heavy and subcrepitant. I removed them and found much liquid blood and bloody froth in the tracheo-bronchial tree, or the air tree. I sectioned the lungs and found them to be extremely congested, and containing an abnormal quantity of blood. The larger bronchi, or the larger portion of the air tree, were completely blocked with blood of recent origin.

'I next examined the heart and the pericardial sac surrounding the heart contained approximately 1/2 ounce of blood-tinged pericardial fluid. The surface of the heart presented an adequate quantity of adipose or fat tissue. I removed and opened the heart and I found the pulmonary artery contained liquid blood. The ascending aorta and the major valves of the heart presented minimum evidence of calcified deposits or nodules. The coronary arteries were well-patent. I sectioned the myocardium or the muscle tissue of the heart, and found no evidence of recent or old infarction, scar tissue, or no evidence of trauma.

'Examination of the liver revealed deep lacerations, or cuts on the liver surface; tears, you might say; on the posterior or the back portion of the right lobe of the liver. The big lobe. I also found deep lacerations in the longitudinal lobe of the liver. And a small piece of the quadrate lobe of the liver had been completely separated and was located in the pelvic region of the abdominal cavity.

'* * *. I found a moderate quantity of interstitial hemorrhage, or blood within the tissue, around the left kidney.

'I removed and sectioned the left kidney and found it to be moderately hemorrhagic, or moderately bloody, throughout. The right kidney was enclosed in a massive quantity of interstitual hemorrhage or blood, around the kidney. Examination of the right kidney revealed that it had been torn loose from its natural connective tissue and essentially loose in the abdominal cavity. The renal artery and vein, the two main vesseks going to the kidney, were still intact. I removed and sectioned the kidney and found it to be extremely hemorrhagic, or bloody, and badly bruised. The right adrenal gland was ruptured. The left adrenal gland was intact. The pancreas was not remarkable. Examination of the spleen revealed two lacerations on the anterior or upper surface. The first measured 3/4 inch in depth and 1/2 inch in length. The second measured 1/2 inch in length and approximately 1/4 inch in depth.

'The urinary bladder contained an estimated 200 cc's of clear yellow urine. The bladder mucosa was not remarkable.

'Q All right. Now, based on your experience as a Toxicologist, do you have an opinion as to what caused the death of Mrs. Wynell A. Whitehurst?

'A Yes, sir, I do.

'Q What is that opinion?

'A From my findings at the post-mortem examination, I concluded that death resulted from aspiration of blood into the lungs, massive trauma, internal hemorrhage and shock associated with the violence inflicted upon the body.'

This witness was not asked if the injuries observed were consistent with Mrs. Whitehurst's having been beaten by a man using his fists.

The State at the close of the case elected to go to the jury on Count Three of the indictment which alleged that Whitehurst killed the deceased by beating her with his fists.

I

The judgment entry fails to state expressly that the jury were sworn. It does, however, state the verdict as being given by the jurors 'on their oaths * * *.'

Therefore, even though Ratliff, 20 Ala.App. 454, 103 So. 912, seemingly accorded no significance to 'upon their oaths * * *,' the absence here of any ground in appellant's motion for new trial distinguishes this record from that in Fowler, 261 Ala. 262, 74 So.2d 512.

We expressly hold that 'on their oaths * * *' is sufficient to show that the jury were sworn. In Vaughn, 236 Ala. 442, 183 So. 428 'sworn according to law' sufficed. See also, Code 1940, T. 30, § 59. We appreciate that a silent record cannot create a presumption which would serve to fill the hiatus of an unsworn jury, i.e., a non-jury. Slatton, 49 Ala.App. 377, 272 So.2d 586; Melton, 45 Ala. 56.

The transcript of evidence recites that the jury was sworn. Under Hines, 238 Ala. 575, 192 So. 423, we cannot supply omissions in the minute entry by reference to the (bill of exceptions) transcript of evidence. But see Fowler, supra. We consider that the jury was sworn.

II

The appellant claims that the trial judge erred in overruling his motion for a continuance. The trial, with the return of a special venire, had been set for August 23, 1971. The grounds for continuance were prejudicial publicity engendered by the police.

The publicity was alleged principally to have come from articles in the Dothan Eagle, a daily newspaper having a circulation of some 11,720 copies in Houston County. Other publicity was claimed from broadcasts over radio and television.

For a more detailed setting we quote from appellant's brief:

'On the late afternoon of August 18, 1971, one Hilton Parrish, who was one of the sureties on Defendant's $25,000.00 appearance bond, was arrested on a charge of attempting to bribe a Dothan detective, Marlin Dillard, by offering him $1,000.00 to change his intended testimony on the murder trial of Defendant. The said Dillard, of course, was probably the most important witness for the State on the trial of the case.

'The original motion for continuance and the amendment thereto, set forth the newspaper articles referred to therein, which have been transmitted to the Court as exhibits and which will not be quoted here at length. The motion as amended also referred to the radio and television publicity given to the matter to that point in time. On the trial date, August 23, the motion was amended by offering two additional exhibits, consisting of 'newspaper articles' appearing on August 20 and August 22. Stipulated facts on the hearing at this time reflected that the arrest of Mr. Parrish occurred in the late afternoon of August 18 and was carried on a 6:00 P.M. news telecast by a Dothan television station, by virtue of the fact that the television camera had been set up in the Dothan Police Station prior to Parrish's being brought in as a prisoner. The clear implication is that the initial publicity was timed and designed with participation of law enforcement officers.

'Exhibit E to the motion, which consists of the article published in the Dothan Eagle for Sunday, August 22, 1971, contains the following statements:

"Defense attorneys filed a motion for a continuance after Dothan restaurateur Hilton Parrish, 44, was arrested on a charge of attempting to bribe a Dothan detective to change his testimony in the case.

* * *

* * *

'White (the District Attorney) also told the court he advised Ramsey (one of defense counsel) Monday there was some 'tampering with state's witnesses going on. He said Ramsey told him later that information had been relayed to Whitehurst by Ramsey. 'Less than two hours later,' White...