4TH DIV.

 

In the Supreme Court of Alabama

 

EX PARTE:

 

WILLIAM D. BENTON, ALIAS

                                    APPELLANT

 

VS.

 

STATE OF ALABAMA

 

            APPELLEE

 

_____________

 

PETITION FOR CERTIORI TO COURT OF APPEALS

 

 

_____________

 

 

BRIEF AND ARGUMENT OF

 

POWELL & FULLER

WHALEY & WHALEY

LEE & LEE

 

ATTORNEYS FOR APPELLANT – PETITIONER

 

This cause is before the Court on petition for certiorari to the Court of Appeals to review the opinion, the judgment based thereon, and the record so far as possible under the rule of this Court.

We will refer to the petitioner as defendant for convenience.

The record proper reflects that the defendant was indicted by a grand jury of Covington County, Alabama, December 8th, 1941, for murder in the first degree for the alleged shooting of Charles Wesley Mizell, with a pistol.  The shooting occurred November 6, 1941. The defendant was tried on the indictment February, 1942, which resulted in a mistrial, and again on November 30th, 1943.

Defendant pleaded not guilty by reason of insanity.  Defendant claims that he fired the fatal shot in his own defense.  The unfortunate fatal difficulty occurred about noon of November 6, 1941, on the main street of the City of Opp.

It is our understanding of the rule that this Court does not review the record, but relies on the opinion of the Court of Appeals for the facts, in cases of this nature.  However, we understand this rule does not extend and have application to the record proper.  With this assumption in view we are calling to the attention of the Court the rulings by the lower court on pleading, which are urged as error.

The defendant filed a plea in abatement to the indictment, in which it is alleged that there were persons not authorized by law to be present at examinations before the grand jury at the time of examination of witnesses and other matters appearing before the grand jury, which preferred the indictment in this cause.  It is further alleged that A. A. Smith, an attorney, was present with the grand jury and participated in the examination of the witnesses in the preferment of the indictment.  The Court sustained demurrers to this plea, thereupon, the defendant filed a motion to quash the indictment on substantially the same ground, which motion was overruled and the defendant excepted.

In the case of Blevins Vs. State, 68 Ala. – 92, the Court condemned the procedure where the presence of an attorney with the grand jury, at the request of the solicitor, was permitted.  In that case, however, it was made to appear that the attorney gave the jury no counsel, expressed to them no opinion unfavorable to the appellant,did no act affecting the deliberation, the appellant had suffered no injury from his presence in the jury room and that the appellant had no greater reason to complain than any citizen.  These facts were not made to appear in this case and no attempt was made to explain the attorney’s presence before the grand jury who is alleged to have participated in preferment of indictment.

The brief of Mr. Whaley filed in the Court of Appeals on January 29th, 1944, in this cause, where Act No. 15 of 1919 and inapplicability of the case of Stone Vs. State, 255 Ala. – 239, 171 So. – 362 were ably discussed, which we here adopt and call to the attention of this Court.

The defendant filed a motion, set out in the record proper, to quash the venire.  Several grounds were assigned for the motion.  The motion presents three general propositions viz.  (1.)  Failure of jury commissioners to perform their duties (not here urged), (2.)  Fraud by the jury commission and solicitor in filling the jury box (opening jury box, just after it had been filled, removing names there-from and substituting others therefor with F. J. Mizell, nephew of deceased present), and (3) Exposing the names on jury roll and jury box to personnel interested in the prosecution, namely F. J. Mizell, nephew of deceased.

The legal sufficiency of the motion was not questioned by demurrer and the facts alleged herein are not denied.

Mr. Justice Rice, speaking for the Court of Appeals, says the motion presents mere irregularity within the purview of the statute. We respectfully submit that it is a fraud of the most sordid sort for the jury commissioners to permit a close relative of a deceased to hand-pick a jury to try defendant charged with his murder, or to expose to such a personnel the names in the jury box.

In support of our contention that the motion presents a question of fraud and not a mere irregularity, covered by statute, we quote Mr. Justice Sommerville in the case of State Vs. Miller, 85 So. 700:

“It seems clear that under the present Jury Law the custody and control of the book containing the jury roll is left with the jury commission.  The very nature of the roll, its destined use, and its intimate relation to the jury box itself, would seem to leave no doubt of the conclusion that it is in no sense a public record intended to be exposed, or which can, consistently with sound policy and the procurement of untainted juries, be exposed to inspection, either by general public or by those who are interested in the personnel of future juries by reason of their interest in pending or anticipated litigation.  To know the names upon the jury roll is to know the names within the jury box, and that such knowledge, in the hands of interested and unscrupulous persons, may result in serious evils in the administration of justice by jury trial, is hardly open to doubt.”

 

The court or the Circuit Judge was authorized to hear the motion, require production of the jury roll, and hear testimony touching the facts alleged in said motion.  For the convenience of the Court we quote from State ex rel Denson Vs. Miller, Supra.

“It is scarcely necessary to add that the circuit judge may, in the exercise of a sound judicial discretion, require the production of the jury roll to be used as evidence in any proceeding wherein it is relevant to the issues before the Court, and in which the inspection and use under the eye of the court, are compatible with the public welfare.”

 

As before stated we recognize the rule that we and this Court are bound by the facts stated in the opinion of the Court of Appeals.  Mr. Justice Rice discussed in the opinion the requested written charges.  No point on the appeal was made on these charges and they were not urged in brief.  We do not agree with the following statement of Mr. Justice Rice in the opinion, “The charges so given to the jury covered and included correctly or more favorably to appellant than was due him.  Every principle, etc. - - - in fact appellant’s able counsel in their two elaborate briefs filed here, do not contend otherwise.”  We did not urge the refusal of the charges as error.  We do not admit that the charges given were more favorable to appellant than was due him.

The defendant adopts the briefs filed in the Court of Appeals and the points urged.  We have already referred to the errors urged in sustaining demurrers to the plea in abatement and the ruling on the motion to quash the venire, referred to in the opinion and appearing in the record proper.

One of the propositions urged in the Court of Appeals was the admissibility of the report of the lunacy commission at Bryce’s Hospital.  The Court of Appeals held in the original motion that the documents were not admissible on account of their remoteness to the fatal difficulty.  This point, however, was discussed more fully on rehearing in which the Court seemed to have hold that the report of the commissioners was admissible for two reasons;

1.      The statute does not expressly authorize.

2.      That the report could not be introduced by the State without the consent of the defendant without doing violence to Article 1 of Section 6 of the constitution, as the appellant has the right to be confronted by the witness against him.

Now, the report was made within less than twelve months from the date of the fatal difficulty, and sometime after the defendant had been committed to the hospital.  The opinion does not state the date of commitment.  The record reflects this date.  We do not think that the statute’s silence on the admission of the report in evidence is controlling.  The Court of Appeal’s theory that the admission would do violence to the constitutional rights of the defendant, we think inconsistent with the language of the statute itself.  The statute expressly prohibits or at least refuses the defendant the right to be faced with the witnesses who made and signed the report, Section  , Title   of the Code of 1940.  The only way the testimony of these witnesses could be taken would be by deposition.

The report of the lunacy commission was made by employees of the State.  The report was made in accordance with an order of the Court.  It was made by professional men of integrity and on the payroll and in the employment of the State.  It most certainly could not be said that these men colored their report favorable to the defendant.  There is ample authority for the admission in evidence of an ex parte statement made by a physician in the employment of a governmental agency and against the interest of the employer.  The State obviously could not dispute the correctness of the report, made by a State physician in the scope and line of his authority in compliance with an order of the Court made on the request of a law enforcement officer.

If the Court erred in not admitting in evidence the report in question, we respectfully urge that it was error prejudicial to the rights of the defendant.

The next point here urged is the holding of the Court of Appeals that the statement of the Solicitor in the closing argument to the jury in which he said, “We all know as a matter of common knowledge that over indulgence in liquor is just like taking too much bromide”, was error without injury.  There was no testimony to support the argument.  It is respectfully submitted that the remark of the Solicitor was prejudicial to the defendant.  Is intoxication an excuse for commission of a crime?  To our minds there is a vast difference in the way a jury would look upon a commission of a crime resulting in over indulgence of liquor, even though it dethroned his reason, and a defendant whose reason had been dethroned by the use of medicine prescribed for him by a licensed physician.  Most certainly it could not be said that a man would bring odium upon himself by consulting a physician and following his advice in the treatment of a bodily ailment.  Expression was given in the opinion of the Court of Appeals to the fact that the defendant was suffering of a bromide psychosis.  This Court judicially knows that bromide is prescribed by reputable physicians in the treatment of human diseases.  The Court further judicially knows that certain medicines have different effects on different persons.  It is no reflection on the defendant whose mind and system was affected by taking it.  It is by many people considered a reflection on any man who indulges in the use of alcoholic liquors to excess.

Now, we can not reconcile the holding of the Court of Appeals in this case with the holding of Court in the case of Pate vs. State, 14 So. – 2nd, Page 246.  Mr. Justice Rice in the Pate case held that the remark of the solicitor referring to the defendant as Pistol Pate was a reversible error.

This Court, in the case of Cross Vs. State, 68 Ala. – 476 said: “It is error sufficient to reverse a judgment for counsel against objections, to state facts pertinent to the issue and not in evidence or to assume arguendo such facts to be in the case when they are not.”

Reverting to the admissibility of the lunacy inquisition or commission’s report we quote from 22 Corpus Juris – 799:

“Since the record as a whole imports every part of it is admissible to prove that which it legitimately sets forth.  Hence the rule admitting records in proof of judicial proceedings includes all pleadings and all entries and papers legitimately forming a part of the record, at least where such evidence is material and otherwise competent.”

 

Now in conclusion we respectfully and earnestly urge that the judgment of affirmance of the Court of Appeals be set aside and that a writ of certiorari issue to the Court of Appeals and directing a reversal of judgment of the lower court and a remandment of the cause.

 

                                                                                                                                    Respectfully Submitted,

                                                                                                                                                                       

                                                                                                                                                                       

                                                                                                                                                                       

                                                                                                                                    Attorneys for Defendant, Petitioner

 

I herby certify that a copy of the above and foregoing has been mailed to the Attorney General,

                                                                                                                                                                       

                                                                                                                                    Attorney for Petitioner.