Boutwell v. State

Appellant was convicted of the offense of murder in the second degree and his punishment fixed at imprisonment in the penitentiary for the term of fifteen years.

A fight, with so many angles that we might as well call it a "free for all" fight, broke out in the "Juke joint" operated by one Ed Tietgen. It "broke" at about 12:00 or a little after, on the midnight of October 3, 1942. The people who had been "making merry" in the "joint" were leaving for their homes, or for other points. Only some 15 or 25 were present at the time.

A "Juke joint," we gather from the testimony — our dictionary gives no definition — is a place where food and drinks are dispensed, and dancing is indulged.

The "animation" would seem to be sustained — judging from the one here involved — not more from the "dancing" than from the fact that "beer" was freely sold and consumed, under license from the State.

The "beginning" of the "sordid mess" which culminated in the death, by knife wounds, of William Swann — for whose murder appellant stands convicted — was by a conversation, quickly eventuating into a blow or blows, between one Knopp, one Schultz, Tietgen, the proprietor of the place, and appellant. It is unnecessary for us to try to unravel the conflicting and contradictory testimony as to this phase of the matter.

Appellant is represented by able counsel here; and in one of their briefs they say: "In discussing the first proposition that appears in the record, that is as to what was said and done in the conversation of Knopp, Schultz, Tietgen and the appellant, the Attorney General evidently overlooked the fact that the appellant conceded in his brief that all of this was a part of the res gestae, and was admissible in evidence, and that the lower court committed no error in permitting the same to go to the jury."

We agree with the conclusion reached by appellant's counsel; and this obviates any further discussion of the exceptions reserved to rulings admitting the testimony to which reference is made above.

One Leslie Resmondo, who seemed to live with his wife, and some children, in a one-room house, was introduced as a witness by appellant to impeach a State's witness, Mauldin, by showing that Mauldin had made statements to Resmondo, contradictory of his testimony on the trial of the case.

The State, in rebuttal of this, introduced Mrs. Leslie Resmondo, for the purpose of showing that she was present at the time Mauldin had his conversation with Leslie Resmondo, and that Mauldin made no such contradictory statements. We see no valid objection to the questions propounded to Mrs. Resmondo; although it did develop in her testimony that she was for a short time out of "hearing distance" of whatever Mauldin might have said. Her testimony seems to us to amount to nothing; and we cannot see how it could have harmed appellant. But if it was thought to have done so — the questions to which objection was interposed being proper — the way to have had advantage of the matter was by a motion to exclude the testimony. No such motion was made. There is no error shown.

The State's testimony was ample to show that William Swann came to his death as a result of a stab or cutting wound, or wounds, inflicted by a pocket knife wielded by appellant; and that said wound or wounds were inflicted without justification. In other words, the verdict of the jury is fully supported by the testimony.

The only other matter appearing to require mention by us is the action of the trial court in allowing one of the jurors, Vaughn, to testify on the hearing of the motion for a new trial, over appellant's objection, that he, in the jury room, while the jurors were deliberating on their verdict, voted for the lowest number of years of any juror, before the jury came to a verdict.

There is nothing shown here which requires a reversal of the judgment of conviction.

Appellant had introduced on the hearing of said motion for a new trial two affidavits; in one of which it was deposed that Vaughn had, prior to the trial, stated to the affiant that he would, if chosen on the jury, "give them what was coming to them;" in the other of which it was deposed that Vaughn had, likewise, stated that (in substance) he would "put them in the electric chair" — referring to appellant.

Vaughn flatly denied making either statement. And, in overruling the motion for a new trial, the trial judge frankly stated as follows, to-wit: "I tell you gentlemen, I believe everything the juror Vaughn has said about this thing and I therefore overrule your motion for a new trial in this case."

This really concludes the discussion, and renders innocuous the question of whether Vaughn did or not testify as to his preliminary vote in the jury room.

But aside from the above, the authorities do not hold that a juror, as Vaughn, here, should be prohibited from disclosing his vote in the jury room where a "prima facie" case has been made — as by the two affidavits mentioned — that said juror has stultified himself in some way by his service on the jury, when he could by such disclosure corroborate his denial of the charges made against him.

This seems to be the clear implication, if not direct holding, of the case of Clark v. United States, 289 U.S. 1,53 S.Ct. 465, 77 L.Ed. 993. And the holding in this case appears to have had at least the tacit approval of our Supreme Court in the opinion in Alabama Fuel Iron Co. v. Powaski, 232 Ala. 66,166 So. 782.

The case appears to have been fairly tried, and we can find, and have been pointed to, no erroneous ruling for which the judgment should be reversed.

It is affirmed.

Affirmed.