Willingham v. State, 6 Div. 562

• Decision Date: 10 March 1955
• Docket Number: 6 Div. 562
• Citation: Willingham v. State, 262 Ala. 550, 80 So.2d 280 (Ala. 1955)
• Parties: Joe Buck WILLINGHAM v. STATE of Alabama.
• Court: Alabama Supreme Court

Page 280

80 So.2d 280

262 Ala. 550

Joe Buck WILLINGHAM v.STATE of Alabama.

6 Div. 562.

Supreme Court of Alabama.

March 10, 1955.

Rehearing Denied May 19, 1955.

DeGraffenried & DeGraffenried, Tuscaloosa, for appellant.

Si Garrett, Atty. Gen., and Maury D. Smith, Asst. Atty. Gen., for the State.

MERRILL, Justice.

The appellantJoe Buck Willingham was indicted for the offense of murder in the first degree.The jury found him guilty of murder in the second degree and he was sentenced to the penitentiary for a term of thirty years.From the judgment and sentence he appealed.

The evidence for the State tended to show that appellant and his brother, James Willingham, engaged in a fight with the deceased, Deward L. Brown, in a combination tavern and dance hall; that James Willingham cut the deceased while appellant pinned the deceased's arms behind him and deceased bled to death from the wounds so inflicted.

James Willingham was tried first and received a sentence of life imprisonment from which he appealed.Joe Buck was tried at a subsequent term of court.His case had been submitted to this court prior to our decision in James' case, which was affirmed.

Many of the assignments of error in the instant case raise the same questions that were presented in the first case and they are considered in the case of Willingham v. State, 261 Ala. 454, 74 So.2d 241.Having already treated them there, and having again considered them in the light of our holding in that case, we discuss here questions new to the instant case.

The appellant assigns as error the action of the court in overruling his challenge for cause of the juror, Wallace.The questions propounded to this juror and the answers given by him tended to establish the following:

Wallace had heard the case discussed and informed the court that if what he had heard discussed about the case was corroborated it 'might have some effect' on his verdict.On further examination he stated in answer to the question whether he would go by the evidence from the witness stand in arriving at his verdict, 'I'll do my best, but I have heard a lot of things in regard to it.Of course, if they were corroborated on the witness stand.'Later after having been asked several questions by the court as to the effect of what he had heard would have on the verdict he would render, he was then asked by the court, '* * * is it your opinion that you could render a verdict according to the evidence, whatever evidence is brought from the witness stand?'The juror replied 'I think so, yes sir.'The court then asked, 'That's your best judgment that you would do that?'His answer was, 'Yes sir.'The court refused to disqualify the juror and this ruling did not constitute reversible error.

Our statute, Code of 1940, Title 30, § 55(7) reads:

'It is a good ground for challenge by either party: * * * 7.That he has a fixed opinion as to the guilt or innocence of the defendant, which would bias his verdict.'

And § 56,Title 30 provides that this ground is proved 'by the oath of the person alone'.

In Peterson v. State, 227 Ala. 361, 150 So. 156, 159, certiorari denied291 U.S. 661, 54 S.Ct. 439, 78 L.Ed. 1053, the court said:

'What is said in Long v. State, 86 Ala. 36, 5 So. 443, 447, finds application here:

"While some of the expressions in the opinions may not be sufficiently limited or qualified for use as a general definition, the following may be deduced from the cases, when compared with each other, as expressing the meaning of a fixed opinion which would bias the verdict.The mere formation of an opinion, founded on rumor or hearsay, which is subject to change on hearing the evidence, and leaves the mind of the juror free to impartially consider the whole evidence, without giving undue credence to that which tends to prove the facts as heard, and to apply to the evidence the law as pronounced by the court, is not sufficient to disqualify.But an opinion, whether founded on rumor or conversations with witnesses, or on observation, which is a conviction, a prejudgment, disqualifying the juror to impartially consider the whole evidence,--that which tends to prove the facts as heard, as well as that which contradicts or explains,--and to apply free from bias the law as given in charge by the court, is a fixed opinion which will bias the verdict.The mind of the juror should be in such a state of freedom, that he is capable of giving to the accused the weight of the presumption of innocence, and the benefit of a reasonable doubt.The statute affirms, in concise, intelligible, and comprehensive language, the common-law rule, as declared by Chief Justice Marshall in Burr's trial.'That light impressions, which may fairly be supposed to yield to the testimony that may be offered, which may leave the mind open to a fair consideration of that testimony, constitute no sufficient objection to a juror; but those strong and deep impressions, which will close the mind against the testimony that may be offered in opposition to them, which will combat that testimony, and resist its force, do constitute a sufficient objection to him.'

"The sufficiency of the...