Ware v. State , 12 Ala. App. 101 ( 1914 )

THOMAS, J.

The defendant was charged with robbery, an offense punishable capitally, an.d was convicted and given a sentence of 15 years.

The bill of exceptions contains the following statement with respect to the organization of the petit jury, for the trial, to wit:

“John T. Palmer was a regular juror who had been organized and impaneled as such for the trial of capital cases for the week, among which was the case of the state against [the present defendant] Thompson Ware. This juror had been in attendance all the week from Monday, May 18th, till Thursday, May 21st [the day of the present trial]. All of- the jurors, both regular and special, for the week were called around and qualified by the court separately for the trial of the present case. When the name of the above-named juror was called to be specially qualified for said case, he did not answer, and the bailiff was directed to, and did, call him from the court door. No other juror or person in the courtroom had seen him on the day of the trial, and he failed to answer to repeated calls. The court thereupon recessed for a few minutes, in response to defendant’s objection to proceeding with the trial, and ascertained by telephoning to the office of the said juror that he had left early on the morning of that day (May 21st) and. was out of the state, and that he would not return to the state till the next week. The party giving this information claimed to have gone to the train with said juror, and claimed that he had an emergency call out of the state.”'

And then, after reciting, among other things, that “the juror was absent without excuse, without leave of the court, and without the consent of defendant,” and that “the defendant moved to quash the venire on the ground of the absence of the juror,” and that the motion was overruled, and that defendant excepted, the bill of exceptions continues: “The court then ordered the name of said juror, Palmer, to be stricken from the list of jurors which had been at the time of the trial furnished the defendant for the purpose of selecting a jury; and the. name of the said juror, Palmer, was so stricken from the list after the same had been furnished to the defendant to strike the jury, and after the cause had been peremptorily called for trial; and the name of the juror was not stricken by the solicitor for the state, nor by the defendant or his attorneys, but was thus stricken off by order of the court because said juror did not answer when his name was called, but appeared to be absent without excuse, and was reported to have left the city without leave of court; and the defendant then and there duly objected and excepted,” etc., to the action of the court in so ordering the striking of the name of the juror and in forcing defendant to trial. Our jury law (Gen. and Loc. Acts 1909, p. 305) clearly relieves tbe action of the court, if otherwise it would have been erroneous, of any error, in that, in sections 17 and 32 thereof, it is expressly provided that: “If the sheriff fails to summon any jurors, or if any person summoned fails or refuses to attend the trial, * * * none, or all of these grounds shall be sufficient to quash the venire, or continue the cause.”

The juror here, though it does appear that he did attend the other trials that had been had in the court on the several days before defendant was tried, “failed to attend defendant’s trial.” While it is true that the statement made to the court over the telephone by the person.at the juror’s office to the effect that the juror had left the state was, since not sworn to, mere hearsay, and could furnish no legal basis, therefore, for finding such to be the fact, yet it was not necessary for the court, in order to proceed legally to the trial without the juror, to find that the juror had left the state. It is, as seen, entirely sufficient to this end that the juror “fails to attend the trial,” which fact may be satisfactorily inferred from the failure of the juror to answer when, as here, his name is duly called in the court and at the door of the court. Even before the statute cited, the court was not bound to send for a juror, summoned in a capital case, who fails to answer when his name is called, although it be shown that the juror resides in the city where the court is held and was in the city at the time his name was drawn.—Johnson v. State, 47 Ala. 9.

The indictment follows the Code form for charging the offense of robbery (Code, § 7161, form 96), and describes the property taken as: “One gold watch of the value of $95; one gold-filled watch of the value of $3.75; one leather pocketbook of the value of 25 cents; one pocketlmife of the value of 50 cents; one $10 bill of the paper currency of the United States of America; and $5 lawful money of the United States of America, a particular description of which $5 is to the grand jury unknown.”

J. E. Pyan, the person alleged to have been robbed, and who was the owner of the said property so alleged to have been taken from his person, testified as a witness for the state, and gave a description of such property, which, in all respects, corresponded with the description set out in the indictment as above quoted, except that he more particularly described the $5 therein mentioned than it is therein described; he stating that it was a $5 bill of the lawful currency of the United States of America, and that he so swore as a witness before the grand jury that found the indictment; while the indictment as seen charges that it was “$5 lawful money [without stating whether it was in coin or currency] of the United States of America, a particular description of which said $5 is to the grand jury unknown.” This variance between allegation and proof (the proof showing, as seen, that the $5 was in currency, and that this fact was known to the grand jury, while the allegation shows that'such description was not known to them) forms the basis for the defendant’s contention that he was entitled to the general affirmative charge which he requested in writing, and which the court refused.

While the general rule is, as appellant contends, that when a fact is known, or is proved, before the grand jury, there is no warrant in the law for them to aver in the indictment that such fact is unknown, and that, consequently, when it appears on the trial that a fact, alleged in the indictment to have been unknown to the grand jury, was known to them, a conviction on such indictment should not be allowed (Winter v. State, 90 Ala. 637, 8 South. 556; Axelrod v. State, 7 Ala. App. 61, 60 South. 959; Childress v. State, 86 Ala. 84, 5 South. 775; Brown v. State, 120 Ala. 342, 25 South. 182; James v. State, 115 Ala. 83, 22 South. 565; Morris v. State, 97 Ala. 82, 12 South. 276), yet, this rule is subject to the quálification that, if the fact alleged to have been unknown was not, in truth, a material fact, nor made so by the character of the averment, then the result mentioned does not'follow, and the defendant would not be entitled to an acquittal, although it did appear on the trial that the fact was known to the grand jury.-34 Cyc. 1805; Brown v. State, 120 Ala. 342, 25 South. 182; Bates v. State, 152 Ala. 77, 44 South. 695; Davis v. State, 3 Ala. App. 71, 57 South. 493; Bradford v. State, 147 Ala. 95, 41 South. 462; Carden v. State, 89 Ala. 130, 7 South. 801; McGehee v. State, 52 Ala. 224; State v. Steelman, 7 Port. 495; Lodano v. State, 25 Ala. 64; Collins v. State, 70 Ala. 19; Newsom v. State, 107 Ala. 133, 18 South. 206; Stone v. State, 115 Ala. 121, 22 South. 275; Gilmore v. State, 99 Ala. 154, 13 South. 536.

• Here the evidence for the state, as developed in the testimony of the witness mentioned, showed, as stated, that there was taken from him, on the occasion of the alleged robbery, property corresponding in description with every article of the property as set out in the indictment — no more, no less — including the $5. Whether, therefore, this $5 was in coin or currency was, we think, immaterial to the identity of the offense, because the offense was sufficiently otherwise identified in the indictment. The offense being sufficiently otherwise identified therein by a definite description of the other property taken, a general description of the $5 as “$5 lawful money,” etc., was sufficient without any additional averment that a further description of the $5 was unknown to the grand jury. Consequently such averment may be treated and rejected as surplusage. — Authorities supra.

If the indictment bad charged the taking of only the $5 mentioned, which was not, under the authorities, sufficiently described without the additional averment that a further description was unknown to the grand ury, then there would be evident merit in the defendant’s (ontention, because in such case the- allegation that a further description was unknown to the grand jury was a material one; but the indictment, as seen, goes further, and charges the taking at the same time of, not only the $5, but also $10 and other articles of personal property, each of which, including the $10, is described in the indictment with sufficient particularity to constitute it a valid charge as to them without any additional averment, which is omitted as to them, that a further description was unknown to the grand jury.—Authorities last cited. Peters v. State, 100 Ala. 10, 14 South. 896; Churchwell v. State, 117 Ala. 124, 23 South. 72; Thompson v. State, 106 Ala. 67, 17 South. 512; Boyd v. State, 153 Ala. 41, 45 South. 591; Thomas v. State, 117 Ala. 84, 23 South. 659; Burney v. State, 87 Ala. 80, 6 South. 391; Grant v. State, 55 Ala. 201; Reese v. State, 90 Ala. 624, 8 South. 818.

In view of this fact, the grand jury might well have emitted, after describing, as they did, the $5 as “$5 lawful money of the United States of America,” any averment that a further description of the $5 was to them unknown; since, even without this averment, the indictment would, we think, have been so sufficiently definite in describing the particular offense charged as to meet the requirements of good pleading.—State v. Murphy, 6 Ala. 845; Carden v. State, 89 Ala. 130, 7 South. 801; Newsom v. State, 107 Ala. 133, 18 South. 206; McGehee v. State, 52 Ala. 224 ; Grant v. State, 55 Ala. 208; State v. Stedman, 7 Port. 495; Lodano v. State, 25 Ala. 64; Collins v. State, 70 Ala. 19; Porter v. State, 58 Ala. 68.

Robbery being an offense in wbicb there are no degrees, the value and amount of the property taken is entirely immaterial, provided it has some monetary value (Jackson v. State, 69 Ala. 249), and the description of such property in the indictment is only necessary to the extent of showing that such property is of a character that has some monetary value, and to the extent of identifying and making certain the particular act of robbery that it is intended to charge.

The indictment here having described, as seen, definitely all the other property taken except the $5, the act of robbery charged was, we think, sufficiently identified without a particular description of the $5. If a particular description of the $5 was unnecessary to the identity of the offense, and hence to the validity of the indictment, then an averment that a particular description was unknown to the grand jury was equally unnecessary, and may be rejected as surplusage. — Authorities supra.

The error of the court in permitting the witness Ryan to testify as to what the watches alleged to have been taken cost him was harmless; since he subsequently testified that that was their value. On a charge of robbery it is only necessary that the property taken have some monetary value.—Jackson v. State, 69 Ala. 249. This, as seen, sufficiently appeared by legal testimony.

There was no error in allowing the witness Ryan to state where he bought the watches, as this evidence, corroborated by the testimony of the persons from whom he bought them, aided in identifying the watch recovered as the watches that were taken.

Defendant’s counsel urge in brief that they should have been permitted to ask the state’s witness Streit, who testified with reference to defendant’s alleged confessions, as to whether or not “there was any such thing as a third degree” employed in extracting the alleged confession. It appears from the record that the defendant was allowed full latitude in this particular, and that the witness was permitted to answer fully and completely all questions propounded on this subject. He stated that no such methods were employed.

It further appears that the state laid an ample predicate for the introduction of the evidence as to the alleged confessions, which showed prima facie that they were voluntarily made.—Franklin v. State, 28 Ala. 9; 1 Mayf. Dig. 204^ § 3.

The part of the oral charge with reference to flight that was excepted to on page 60 of the record was free from error.—1 Mayf. Dig. 331, § 17; Bowles v. State, 58 Ala. 335; Boss v. State, 74 Ala. 532.

So was the action of the .court in refusing charges X and Z on the same subject. The evidence shows that a short time after the commission of the offense the defendant did leave the city of Birmingham, and did not return until he was brought back under arrest. Whether he left from a consciousness of guilt and to escape arrest or from innocent motives, as he claims, was for the jury to say.

There Avas no error in that part of the oral charge, excepted to on page 59 of the record.—Malachi v. State, 89 Ala. 134, 8 South. 104.

Charges 3 and 15 were argumentative.—Stevens v. State, 6 Ala. App. 6, 60 South. 459.

Charge 17, if a correct exposition of the law, was covered by given charge 16.

Charge 28, thoug'h held good in Fleming v. State, 150 Ala. 19, 43 South. 219, and Adams v. State, 175 Ala. 11, 57 South. 591, is fully covered by given charges 8 and 9.

Charge 30 was patently bad, being in its concluding sentence the equivalent of the affirmative charge.

Charge 35, if not faulty, as being argumentative, is fully covered by given charge 24.

, Charge 39 is a practical duplicate of given charge 27.

Charge 42 was bad, if for no other reason, because it asserts that, if the jury have a reasonable doubt of defendant’s innocence, they must acquit him; whereas the law is that, if they have a reasonable doubt of his guilt, they must acquit him.

Charge 43 was misleading and incorrect. The correct proposition of law attempted to be set out in this charge is contained in given charges 10 and 22.

Charge K, if not otherwise objectionable, is so because elliptical, in this, that after referring to the showing made for the absent witness, Brown, it asserts that it is permissible for the jury “to discuss the connection with all the other evidence in the case.” Evidently something-is omitted, since the sentence, as quoted, fails to' make sense.

We have discussed the only points urgéd in brief.. As we find no error in the record, the judgment of conviction is affirmed.

Affirmed.