Yelton v. State, 3 Div. 166

CourtAlabama Court of Criminal Appeals
Writing for the CourtDeCARLO
Citation277 So.2d 912,50 Ala.App. 168
PartiesThomas William YELTON, alias v. STATE.
Decision Date20 February 1973
Docket Number3 Div. 166

Page 912

277 So.2d 912
50 Ala.App. 168
Thomas William YELTON, alias
v.
STATE.
3 Div. 166.
Court of Criminal Appeals of Alabama.
Feb. 20, 1973.
Rehearing Denied April 3, 1973.

Page 913

J. Knox Argo, Montgomery, for appellant.

[50 Ala.App. 169] William J. Baxley, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State.

DeCARLO, Judge.

The appellant, Thomas William Yelton, alias Bill Yelton, was convicted of murder in the first degree and sentenced to life imprisonment by the Circuit Court of Butler County. From this verdict and judgment, he prosecutes this appeal.

The facts of this case are developed from the following testimony of Joyce Henderson, wife of the deceased, Phillip Henderson:

On December 18, 1971, she and her husband had attended the Opp Jaycee Christmas dance with other Greenville Jaycees, and they returned home around 2:30 A.M. Sunday. While she was in the bathroom dressing for bed, she heard a noise which sounded like a glass breaking, and as she turned around, saw Phillip at the foot of the bed with blood coming out of the right side of his head. Before she could move, appellant was at the bathroom door holding a gun on her and stating, 'He is a dead S.O.B., and you are next.' Appellant then stated he was taking her to Mars Hill, North Carolina, to kill her. Robed in pajamas and a housecoat, she left the house with him, and they drove through Atlanta and into Greenville, South Carolina, where the appellant threw the gun into a reservoir called Water Shed. Later the appellant stopped in Asheville, North Carolina, for her to purchase some clothes, and they continued on to Marion, Virginia, the home of his parents. Not finding his parents at home, they waited a short while, during which time witness begged appellant to let her call someone at the Police Department in Greenville, Alabama, about her husband. She telephoned from the Holiday Inn to inform the police that Phillip was dead, and they were returning. Upon arriving back in Greenville, Alabama, they were immediately surrounded by police, and appellant was taken into custody.

Page 914

At the time her husband was killed, Mrs. Henderson stated she had known appellant for approximately seven or eight months. He was formerly a member of the Jaycees, and all of them were friends.

I

The appellant insists that the lower court committed error in permitting the sheriff to have custody of the jury and eat meals with them, particularly since he participated in the investigation and later appeared as a witness for the prosecution.

'It is established that in their deliberation the jury should be separated and uninfluenced by the outside world. Any [50 Ala.App. 170] misconduct that might influence the jury, affect the verdict rendered or the punishment fixed, is a cause for a new trial. The test of vitiating influence upon a jury authorizing a new trial is not whether it did influence the jury to act without the evidence, but whether it might have unlawfully influenced the jury in the verdict returned, as to its nature, character, or degree, or the amount and extent of the punishment fixed by the jury within the statute.' Oliver v. State, 232 Ala. 5, 166 So. 615.

In the case before us, the sheriff gave testimony concerning evidence he found during an investigation at the scene. During the trial it was shown that he was also present when the appellant made a statement. Upon completion of the trial and before the jury's deliberations, the sheriff was present and talked with jurors during their evening meal.

Although the sheriff's testimony was confined to the evidence found at the scene, his presence with the jury after the trial could have emphasized his testimony and the part he played in the trial.

Any person holding the office of sheriff is not only recognized as the symbol of that county's law, but is the law to his constituents when he speaks. It is for this reason that the testimony of such an officer may influence a jury's verdict, and the impact of his presence is increased considerably whenever he is brought into such close company with the jurors.

In Oliver v. State, supra, a case very much like the one before us, the Alabama Supreme Court stated:

'The association of this witness (Enslen) as special bailiff in control of the jury during the trial and its deliberations, furnished opportunity for ingratiating himself in the minds of the individual jurors, and for unduly emphasizing his testimony given in that case,...

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9 practice notes
  • Kendrick v. State, 3 Div. 324
    • United States
    • Alabama Court of Criminal Appeals
    • April 22, 1975
    ...was based on the holding of the Supreme Court of Alabama in the McCray and Lawley cases. The holding of this court in Yelton v. State, 50 Ala.App. 168, 277 So.2d 912, was based on facts altogether different from those presented in this case. In effect, this court held that the trial court e......
  • Evans v. State, 3 Div. 426
    • United States
    • Alabama Court of Criminal Appeals
    • October 5, 1976
    ...qualities of improper remarks of the district attorney can be gauged. Each case must be determined on its own merits. Yelton v. State, 50 Ala.App. 168, 277 So.2d 912, cert. den., 291 Ala. 804, 277 So.2d 916, and 291 Ala. 804, 277 So.2d Wide latitude, however, is given to the district attorn......
  • Bass v. State, No. A07A1519.
    • United States
    • United States Court of Appeals (Georgia)
    • November 30, 2007
    ...92 S.Ct. 1503 (Stewart, J., concurring) (cited with approval in Radford, supra at 48-50(1), (6), 426 S.E.2d 868); see Yelton v. State, 50 Ala.App. 168, 277 So.2d 912, 914-915(I) (1973) (because basic guarantees of a jury trial are undermined by permitting certain commingling between jurors ......
  • Hines v. State, 4 Div. 191
    • United States
    • Alabama Court of Criminal Appeals
    • March 13, 1973
    ...upon the appellant. The foregoing opinion was prepared by the Honorable L. S. MOORE, Supenumerary Circuit Judge, serving as a Judge of [50 Ala.App. 168] this Court under § 2 of Act No. 288, July 7, 1945, as amended; his opinion is hereby adopted as that of this Affirmed. Remanded with direc......
  • Request a trial to view additional results
9 cases
  • Kendrick v. State, 3 Div. 324
    • United States
    • Alabama Court of Criminal Appeals
    • April 22, 1975
    ...was based on the holding of the Supreme Court of Alabama in the McCray and Lawley cases. The holding of this court in Yelton v. State, 50 Ala.App. 168, 277 So.2d 912, was based on facts altogether different from those presented in this case. In effect, this court held that the trial court e......
  • Evans v. State, 3 Div. 426
    • United States
    • Alabama Court of Criminal Appeals
    • October 5, 1976
    ...qualities of improper remarks of the district attorney can be gauged. Each case must be determined on its own merits. Yelton v. State, 50 Ala.App. 168, 277 So.2d 912, cert. den., 291 Ala. 804, 277 So.2d 916, and 291 Ala. 804, 277 So.2d Wide latitude, however, is given to the district attorn......
  • Bass v. State, No. A07A1519.
    • United States
    • United States Court of Appeals (Georgia)
    • November 30, 2007
    ...92 S.Ct. 1503 (Stewart, J., concurring) (cited with approval in Radford, supra at 48-50(1), (6), 426 S.E.2d 868); see Yelton v. State, 50 Ala.App. 168, 277 So.2d 912, 914-915(I) (1973) (because basic guarantees of a jury trial are undermined by permitting certain commingling between jurors ......
  • Hines v. State, 4 Div. 191
    • United States
    • Alabama Court of Criminal Appeals
    • March 13, 1973
    ...upon the appellant. The foregoing opinion was prepared by the Honorable L. S. MOORE, Supenumerary Circuit Judge, serving as a Judge of [50 Ala.App. 168] this Court under § 2 of Act No. 288, July 7, 1945, as amended; his opinion is hereby adopted as that of this Affirmed. Remanded with direc......
  • Request a trial to view additional results

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