Williams v. State

• Decision Date: 20 February 1951
• Docket Number: 6 Div. 94
• Citation: 36 Ala.App. 26,58 So.2d 646
• Parties: WILLIAMS v. STATE.
• Court: Alabama Court of Appeals

Page 646

58 So.2d 646

36 Ala.App. 26

WILLIAMS v. STATE.

6 Div. 94.

Court of Appeals of Alabama.

Feb. 20, 1951.

Rehearing Denied March 13, 1951.

Hugh A. Locke and Winton G. Wilson, Birmingham, for appellant.

Si Garrett, Atty. Gen., and Robt. Straub, Asst. Atty. Gen., for the State.

These charges were refused to defendant:

'40. The law gives a person the same right to use such force as may be reasonably necessary under the circumstances by which he is surrounded to protect himself from great bodily harm as it does to prevent his life being taken, and such person may excusably use this necessary force to save himself from felonious assault.'

'42. The court charges the jury that the defendant in this case has testified in his own behalf, as he had a right to do, and he is presumed to have testified truthfully, and it is the duty of the jury to reconcile his testimony and that of other witnesses with the presumption of innocence which attends the accused if they reasonably can.'

51 (as far as pertinent). 'I charge you, gentlemen of the jury, that if you are reasonably satisfied from the evidence in this case,' etc.

'G. The shooting of the deceased, Hobgood, would be justifiable or excusable, if you find from the evidence defendant was in apparently imminent danger of death, or great bodily harm, by reason of Hobgood being in close proximity to the defendant with an open knife in his hand, whereby defendant could not retreat or escape without increasing his danger--and you further find from the evidence defendant did not provoke the difficulty.'

'O. If the jury believe from the evidence that any witness for the state has made inconsistent statements in this case, and that such statements were wilfully false, you may disregard the testimony of such witness.'

'(11) B.B. The court charges the jury that before words, conduct or deeds of defendant can be said, within the law, to encourage or provoke the difficuty, they must have been intentionally said or done by the defendant, and his words, conduct or deeds must have brought on or provoked the difficulty.'

'20-V. In cases of self-defense, it is not the burden of the defendant to come forward with evidence that he was free from fault in bringing on the difficulty. In such cases the burden is on the state.'

CARR, Presiding Judge.

On an indictment charging murder in the first degree the accused was convicted of murder in the second degree and sentenced to serve fifteen years in the State penitentiary.

This is the second time this case has been before this court on appeal. See 34 Ala.App. 410, 42 So.2d 594.

According to the testimony of State's witnesses, after dark in the late afternoon, the appellant was on the sidewalk of a street in a residential section of the City of Birmingham. His demeanor was peculiar and he appeared to be intoxicated. The deceased, Mr. Hobgood, and his eight year old niece, while en route to a drug store, observed the appellant as they neared him. Mr. Hobgood inquired of the defendant if he was not there for the purpose of 'molesting' the lady occupants of houses nearby, and told him that he had better go on home. At this time, and while the decedent was holding his niece's hand, the appellant shot Mr. Hobgood with a pistol. There were two discharges from the gun. The second rapidly succeeded the first. Apparently only one load struck the deceased. Death from the inflicted wound ensued forthwith.

The appellant admitted that he shot Mr. Hobgood, but claimed the necessity arose under the doctrine of self defense. In this aspect he testified that the decedent was in the act of attacking him with an open pocket knife. He stated also that he was not intoxicated, and the only purpose of his presence there was that he was journeying on his usual route from his office to his home.

This is a scant delineation of the evidence but it is sufficient for the purpose of this review.

There were very few objections interposed during the time the testimony was being taken. We have, with the required care, considered each ruling relating thereto, and we do not find harmful error in any of them.

A response to these matters would not be of any value, since the presented questions relate only to elementary rules of evidence.

At the beginning of the trial proceedings, appellant's attorney asked the prospective jurors this question:

'Has any one of you got any personal feeling with reference to Mr. Williams who is a lawyer and has been a lawyer here for a long time, and during the years have you any opinion against him or favorable to him; have you any fixed opinion against him, anything that you have heard or known during the years that would affect your verdict adversely or favorably,--if there is, let us know?'

Immediately following the query the record discloses the following:

'The only response to this question was from one juror, Mr. Arthur B. Curtis, who stated aloud in the presence up in this inquiry I am for conviction.' jurors: 'Your Honor, I want to say this,--if there is any whiskey mixed up in this inquiry I am for conviction.' After this statement by said juror the following proceedings were had:

'Mr. Ray: Your Honor, I think it is my duty at this time to make a motion to this Court: In view of the statement made by Mr. Curtis, and the nature of his statement, it is such that this jury couldn't be fair to the defendant in this trial; and I move that the jury be discharged and that we not proceed with this case on that account. It is an unusual statement and might embarrass the rest of them.

'Asst. Sol. Deason: Judge, I don't think that would cause this defendant any embarrassment. This gentleman inadvertently expressed his own feeling.

'The Court: I am going to eliminate Mr. Curtis from the jury at this time; and I want to say that the statement he made,--I regret that he made it, because under the law the case will be tried according to the evidence, and it must be tried on the evidence presented and according to the law that the Court gives you in its charge. It must be tried on the evidence, and it must be tried according to the law that the Court will give you in his charge,--the law that governs the case; that's the only thing anybody should conscientiously and honestly consider in the trial of this case. And, Mr. Curtis, I am satisfied, didn't mean what he said, because I think Mr. Curtis would be governed by the rules of the Court and the law and the evidence; but at the same time, under the circumstances--I don't want to embarrass Mr. Curtis--but I am going to ask him to come and sit inside the rail, and I will eliminate him from this jury. And, gentlemen, you will not under any circumstance let the statement of Mr. Curtis have any weight whatever with you in the outcome of this case. It shouldn't reflect on your intelligence and your honor. I wouldn't let you sit on this case if I had any doubt about that.

'Mr. Ray: What is your ruling on my motion?

'The Court: I overrule your motion.

'Mr. Ray: We reserve an exception. We are ready to proceed.'

It is insisted that the judgment below should be reversed because of the court's ruling as indicated in the above quotation.

In reviewing the question we must accord due deference to the judgment of the trial judge. He was on the scene and saw and heard all that transpired. He was in a position to evaluate the nature and purport of the occurrence. Much must be left to his discretion in denying the motion.

It is not altogether clear just what the prospective juror meant by his reply to the quoted question. Without doubt it was a remark coming from a person who entertained extreme views on the matter to which his reply related.

The juror was excused and, if any injury inured to the rights of the accused, it would have to be predicated on the impression this remark made on any other juror or jurors who were selected to try the case.

The writer authored the opinion for this court in the recent case of Usrey v. State, 35 Ala.App. 434, 48 So.2d 443. I had this to say:

'Generally speaking, a mistrial is no trial. If, because of something that transpired or occurred during the progress of the trial, it is made clearly to appear that justice cannot be done, the proceeding should be discontinued and a mistrial ordered.

'It is often difficult to decide whether or not the substantial rights of a party litigant have been injuriously affected by some event, incident, or happening which transpired during the progress of a trial.

'The courts recognize that some occurrences, by their very nature and import, are so grossly improper and highly prejudicial to the rights of the accused that neither retraction by counsel nor action by the trial court can destroy their sinister influences. Under these circumstances, the only proper course left to the trial judge is to declare a mistrial if the appropriate request is made. This action should be taken if the judge is convinced that the prejudicial matter which was injected into the proceedings will probably affect the verdict of the jury and deny to the defendant a fair and impartial trial.'

In the case of McGuire v. State, 239 Ala. 315, 194 So. 815, while the jury was being qualified to try the case, one of the number asked to be excused for the reason that he thought the defendant was guilty. This was said in the hearing and presence of the prospective jurors. The court refused to charge error on account of the action of the court below in denying the defendant's request for another panel from which to select his jury.

We think because of its import and directive application this assertion was more damnifying than the statement of instant concern.

Counsel for appellant in oral argument and in brief lays much stress on the doctrine that when matters of this kind arise it is not necessary to show that the occurrence controlled or determined the verdict of the jury, but rather whether or not the verdict might have been affected by it.

In applying...