Summary
In Turner v. State, 54 Ala. App. 467, 309 So.2d 503, we held this matter could not be raised for the first time on appeal.
Summary of this case from Hammonds v. StateOpinion
3 Div. 283.
March 4, 1975.
Appeal from the Circuit Court, Conecuh County, Robert E. Lee Key, J.
Edwin C. Page, Jr., Evergreen, for appellant.
In prosecution for robbery under the provisions of Section 415 of Title 14 of the Code of Alabama, a capital offense, the Court cannot order an over-night separation of the jury to allow each juror to go to his place of abode. 7 Ala. Digest Criminal Law, 927; 6 Ala. Digest 854(1)(9); Arnett v. State, 225 Ala. 8, 141 So. 699; Young v. State, 283 Ala. 682, 220 So.2d 843; Payne v. State, 226 Ala. 69, 145 So. 650; Mitchell v. State, 244 Ala. 503, 14 So.2d 132; Echols v. State, 34 Ala. App. 305, 39 So.2d 44; Palmore v. State, 283 Ala. 501, 218 So.2d 830; Golden v. State, 39 Ala. App. 361, 103 So.2d 52; Id. 267 Ala. 456, 103 So.2d 62; Kenny v. State, 51 Ala. App. 35, 282 So.2d 387.
William J. Baxley, Atty. Gen., and Carol Jean Smith, Asst. Atty. Gen., for the State.
Since there was no motion for a mistrial or motion for a new trial pointing out the error in allowing the jury to separate, the State was not given the opportunity to overcome the presumption of injury. Therefore, this matter may not be raised for the first time on appeal. Palmore v. State, 283 Ala. 501, 218 So.2d 830; Chappelle v. State, 267 Ala. 37, 99 So.2d 431; Wade v. State, 49 Ala. App. 601, 274 So.2d 626; Thompson v. State, 44 Ala. App. 414, 211 So.2d 505.
Robbery: sentence, ten years in the penitentiary.
Alabama makes no distinction between armed and unarmed robbery, keeping in this crime the Common Law definition. Douglass v. State, 21 Ala. App. 289, 107 So. 791: Code 1940, T. 14, § 415.
I
We conclude that the State adduced sufficient evidence to sustain the indictment, if credited by the jury to the required degree, i. e., beyond a reasonable doubt.
The verdict reflects this convincement and implicitly is a rejection of Turner's claim of alibi.
II
On this appeal it is argued that there was a separation of the jury to the hurt of the appellant. We have searched the record as required under Code 1940, T. 15, § 389. We find no ruling on this point raised in the trial court. Compare Pitts v. State, 53 Ala. App. 373, 300 So.2d 416.
Under Supreme Court Rules 24 and 25 we can assume from the tenor of the circuit clerk's certificate that the accused, his counsel and district attorney, did not consent to a separation under the conditions stipulated in § 2 of Act No. 794 of September 7, 1971. The "open court" provision in § 1 of said Act is not before us for review. See Mitchell v. State, 244 Ala. 503, at 508, 14 So.2d 132; 23A C.J.S. Criminal L. § 1387 b.
The appellant's silence when the jury separated did not bring on "invited error" because as we understand Mr. Justice Merrill's definition, invited error must be the product of a party's own incorrect request of the trial judge. Aetna Life Insurance Co. v. Beasley, 272 Ala. 153, 130 So.2d 178; Thompson v. Magic City Trucking Service, 275 Ala. 291, 154 So.2d 306. As we read the cases, the trial judge must follow Coke's admonition that, once sworn, the jury must be kept together until verdict. Williams v. State, 45 Ala. 57.
However, the lapse of the judge does not confer an acquittal: rather, only a new trial. Williams, supra, was an affirmance because the defendant moved for a discharge and not for a mistrial or venire de novo. In Mitchell, 244 Ala. 503, 14 So.2d 132, it was, in the penultimate paragraph, pointed out that a motion for new trial was the correct procedure to determine the harm vel non of a jury separation.
Statutory mistrial first came in the 1907 Code. See Parham v. State, 47 Ala. App. 76, 250 So.2d 613.
While waiver or consent — certainly in open court — cannot purge the possibility of prejudicial error (Golden v. State, 39 Ala. App. 361, 103 So.2d 52), we are apprised of no case which dispenses with the requirement of an adverse ruling by the trial court, whether brought on by objection, motion for mistrial or new trial. We hold that the question cannot be first raised by an appeal or a writ of error.
The judgment below is
Affirmed.
All the Judges concur.