Wilcutt v. State, 6 Div. 599
Decision Date | 15 September 1960 |
Docket Number | 6 Div. 599 |
Citation | 123 So.2d 203,271 Ala. 315 |
Court | Alabama Supreme Court |
Parties | Herbert Eugene WILCUTT. v. STATE of Alabama. |
Rogers, Howard & Redden, Birmingham, for petitioner.
MacDonald Gallion, Atty. Gen., and Jas. W. Webb, Asst. Atty. Gen., opposed.
Petition of Herbert Eugene Wilcutt for writ of certiorari to the Court of Appeals to review and revise the judgment and decision of that court in the case of Wilcutt v. State, 123 So.2d 193. Our conclusion is that the writ is due to be denied. However, we think one of the thirteen grounds of the petition calls for discussion.
After the trial court's oral charge, the jury retired to the jury room for deliberation. After deliberating for some time, the jury returned to the courtroom, where the following occurred:
'The Court: Gentlemen, do you have some requests to make?
'A Juror: Yes, sir.
'The Court: All right, sir.
'The Court: As to whether or not it could be less?
'The Juror: Yes, sir.
'A Juror: Could you read us the law, or anything, on probation?
'Is that any help to you?
'A Juror: Yes, sir.
'The Court: Let me say this to you gentlemen: There is nothing to stop the jury from making any recommendation they might want to make.
'A Juror: Would it be considered?
'A Juror: Could it be considered?
'The Court: I am afraid I couldn't answer that.
'A Juror: If there is a misunderstanding as to a certain, particular statement, and so forth, we can have that read to us, couldn't we?
'The Court: Yes, sir.
'A Juror: Ask for that particular statement?
'The Court: Is there something now you feel like might clarify it by reading it?
'A Juror: I would rather think about it and then pin point it.
'All right, gentlemen, you may return to the juryroom.
'(Thereupon, at 9:40 A.M., the jury returned to the juryroom, and, at 9:41 A.M., the following was had and done:)
'Mr. Rogers: Judge, we want to except to that part of the Court's charge which told the jury that they could recommend anything that they wanted, and the failure of the Court to state to the jury that he was not bound by such recommendation and to further clarify it, and on the further grounds that it would be a bad, or an improper verdict for a jury to make such a recommendation, and on the further ground that, by implication, the jury might infer that such a recommendation would be considered and clemency granted.
'(Thereupon, the jury was brought back out into the courtroom at 9:42 A.M., and, in the presence of the same parties, the following proceedings were had and done:)
'All right, gentlemen, I just...
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...test." Ex parte Dolvin, 391 So.2d 677 (Ala.1980); see, Wilcutt v. State, 41 Ala.App. 25, 123 So.2d 193, cert. denied, 271 Ala. 315, 123 So.2d 203 (1960); Flurry v. State, 52 Ala.App. 64, 289 So.2d 632 (1973), cert. denied, 292 Ala. 720, 289 So.2d 644 (1974); Wynn v. State, 423 So.2d 294 (Al......
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...test.' Ex parte Dolvin, 391 So.2d 677 (Ala.1980); see, Wilcutt v. State, 41 Ala.App. 25, 123 So.2d 193, cert. denied, 271 Ala. 315, 123 So.2d 203 (1960); Flurry v. State, 52 Ala.App. 64, 289 So.2d 632 (1973), cert. denied, 292 Ala. 720, 289 So.2d 644 (1974); Wynn v. State, 423 So.2d 294 (Al......
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