The defendant was convicted of murder in the first degree and sentenced to life imprisonment. He appeals.
I. Conduct of the Trial Court
Defendant’s first claims of error are that after the jury had begun its deliberations and was about to be sequestered for the night at 9:45 p. m., the court reconvened in the absence of the defendant and his counsel; that the jury was told that the court was looking for the defеndant and that the jury could not be instructed because the defendant was not in court; and further, that the trial judge, after placing defendant in contempt and fining him for his absence (this outside the presence of the jury), commented in the presence of the jury as to the time for defendant to pay the fine.
*117 We think it useful to set out in full these portions of the record:
“(Whereupon, the Jurors left the courtroom and returned after a short period, and the following proceedings were had and done:)
“THE COURT: We are looking for the Defendant at this time, and I can’t proceed to give you any instructions at this particular time because the Defendant is not in Court. I am going to wait now for his attorney to come into Court. Mr. Smith, see if you can find him 'out there and let’s heаr what he has to say.
“(Whereupon, Mr. Smith left the courtroom.)
“THE COURT: I am going to go ahead now and let you go on back without giving you any instructions and just have you wait back there. You have to get up and go again. When we get the Defendant, I will bring you back here.
“(Whereupon, the Jury left the courtroom, and the following proceedings were had and done, out of the presence of the Jury:)
* . * * ‡ * *
“(Whereupon, the Jury left the cоurtroom and the following proceedings were had and done, out of the presence of the Jury:)
“MR. GALLOWAY: My exception was, you said that you gave me until tomorrow for the Defendant to pay the fine. When you said it, as I looked, there were some four Jurors who stopped and looked at you on that statement and I would take exception to the effect that the Defendant was fined before being brought before this Jury.
“THE COURT: I will note your exception and also make the statement that the Jury was, at that time, leaving the courtroom at the time the Court made that statement. Your exception to the Court making that statement at the time the Jury was leaving is noted for the record.
“MR. GALLOWAY: Thank you.
“THE COURT: I am not going to bother about it tonight; the fine will be payable tomorrow.”
Wе are constrained first to note that the record shows that “Mr. Smith” was told by the trial judge to find the defendant. As Mr. Smith is characterized in defendant’s original brief as counsel and the only Mr. Smith appearing in the record in these proceedings was Honorable Robert H. Smith, of trial and appellate counsel, we conclude that at least one of defendant’s trial counsel was in fаct in the courtroom when the first above-quoted remark was made by the trial judge. Certainly the record does not disclose otherwise. We see no difference in substance between what the trial judge said when defense counsel was in the courtroom and when he was out of the courtroom.
We think a rule of this court is dispositive of these claims of error, and hold there wаs no error in the trial court’s comments as to the absence of the defendant.
“Hereafter no judgment may be reversed or set aside, nor new trial granted by this court or by any other court of this state, in any civil or criminal case . for any error as to any matter of pleading or procedure, unless in the opinion of the court to which the appeal is taken or аpplication is made, after an examination of the entire cause, it should appear that the error complained of has probably injuriously affected substantial rights of the parties.” Rule 45, Rules of Practice, Supreme Court, Appendix, Title 7, Code of Alabama (1940 as amended) ; Kabase v. State,
We hold that an explanation by the trial judge to the jury why they could not proceed, i. e., that the defendant was not present, if error at all, is not error which *118 has probably injuriously affected substantial rights of the defendant.
Coming now to the statement the trial judge made at the time the jury was leaving the courtroom, defendant argues that this mention of the contempt fine (levied while the jury was outside the courtroom) alone, or taken with the preceding statements as to the absence of the defendant, “created substantial injury to the cause of defendant by requiring him to bear a burden in front of the jury that he ought not to have been required to bear. After the statement concerning the fine was made in the presence of the jury, the Court did not attempt to cure the prejudicial effect by instructing the jury to disregard this set of circumstances in arriving at their verdict.”
A careful reading of this part of the record at most discloses an implication that the four jurors actually heard what the trial judge said about paying the fine. Of course, the four jurors could have looked around when they heard something being said, whether it was intelligible to them or not. We think what was said by our Supreme Court in Nichols v. State,
II. Absences of Defendant
Defendant further argues that there were at least two occasions in the trial where the transcript affirmatively shows neither defendant nor his counsel was present during the proceedings. The first is that first related in this opinion, and the second occurred the next morning after the jury had resumed deliberations. As to the second, the record shows this in summary:
“MR. SMITH: We want those matters to show in the record that the defendant nor the Defense Counsel was present at either of those times.
“THE COURT: Note that for the record, and note your exception for the record. Do you wish the Court to give any instructions to the Jury pertaining to those objections?
“MR. SMITH: No, sir; not at this time.
“THE COURT: All right; for the record, the Court would like to note that neither the Defendant or the Defense Counsel was in the courtroom when those requests were made by the Jury for the verdict forms, not was the Defense Counsel or the Defendant in the courtroom when the Court requested the Bailiff to inquire whether or not the Jury wanted to take a break. Is there anything further now ?
“MR. SMITH: No, Your Honor.”
Defendant argues that these occasions deprived him of his right to be present at all stages of the proceedings from arraignment to final sentence, and that the court thus lost jurisdiction to pronounce a valid judgment against the defendant. We have concluded that one of defense counsel was effectively in the courtroom on the first occasion. Is there error in view of defendant’s absence on the first occasion, and the absence of defendant and his counsel on the second occasion (really two instances) ?
*119
We hold there is no
error. In
Aldridge v. State,
Defendant cites Berness v. State,
We think the differences in that case and the instant case are apparent. Likewise in Lee v. State,
The record does not reveal why defendant or counsel was not present nor in the courtroom when the jury asked for the verdict forms and when the jury was asked if they wished to take a break. The record does not reveal whether the jury room adjoins the cоurtroom, is down the hall, is on another floor, etc. This is not criticism of the able defense counsel, but the fact is that these types of exchanges are ordinary and normal in the day-to-day trials of cases in this State. We think Justice Mayfield speaking for our Supreme Court in Berness, supra, states it well:
“All contact between an impaneled jury, counsel for the parties, and other officers of the cоurt, which does not occur in open court, should be avoided. However, we do not wish to be understood as saying that where there are normal exchanges of conversation between officers of the court, or others not connected with the trial or an important incident of the trial, that such conversations can be made the predicate of errоr.”
III. Court Reporter/Bailiff
Defendant next argues that his substantial rights were injuriously affected by the absence of a separate official court reporter and bailiff. Defendant here argues that the trial judge’s comment on payment of the fine should have been recorded verbatim, that this and other of the proceedings were not fully transcribed as prescribed by statute, and that defendant аnd this court “are deprived of a full and complete transcript which would more meaningfully elucidate the error this defendant urges.” Defendant cites Title 13, *120 Sections 262 and 186, Code of Alabama (1940 as amended), which set forth the duties of a court reporter and a bailiff, respectively.
We will not burden this opinion with setting those sections out. We will say that there is no apparent or obvious conflict in the duties of those positions. When the gist of a judge’s comment later attacked on appeal as improper is stated in the form of an exception to the comment, and there is no disagreement as to the substance or gist of the comment, that seems to us sufficient to review the matter on that basis and we have done so in this case. We hasten to add that exception alone is sufficient in this case because this is not a matter covered by Rule 33, Rules of Practice, Circuit and Inferior Courts, Title 7, Appendix, Code of Alabama (1940 as amended). We might state that an evidentiary hearing could perhaps have assisted defendant if he desired to know the exact words of the judge, and whether if, in fact, any juror understoоd the judge’s comment. See James v. State, supra.
But defendant further contends that a person serving dually as court reporter and bailiff is prohibited by Section 280 of the Alabama Constitution of 1901. That section reads, in pertinent part:
“ * * *; nor, * * * shall any person hold two offices of profit at one and the same time under this state * *
The defendant’s main complaint here is appаrently that because the reporter was acting as bailiff at the time the-trial judge mentioned payment of the contempt fine, no verbatim transcript was made. The other complaint is that when the trial judge inquired of the reporter-bailiff’s later contact with the jury, -the court reporter was transcribing his own testimony and such “situation lends itself to inaccuracy and when it ocсurs in a criminal case, to the injury of the defendant’s substantial rights.”
We cannot agree. As we have previously noted, we have reviewed matters in this case made the subject of exception. However, no objection nor exception was taken at any time before this appeal as to the reporter serving as bailiff. Therefore, no error is appаrent from the record. Rule 45, supra, and Boswell v. State,
IV. Demonstrative Evidence
The defendant contends that the trial judge erred in sustaining the state’s objectiоn to his attempt to introduce in evidence “as demonstrative evidence”, two knives which fell within the dimensional range in the coroner’s report, viz., “knife at least 4" long possibly 6" and about to y" in width.” The state had previously offered a knife, taken from the defendant and which matched the description of the other witnesses, and that knife had been received in evidence. Also, the. defense had introduced a ruler, which had been marked as to the length of a knife by a witness who had seen defendant carrying a knife the night of the murder.
We hold there was no error in sustaining the objection to the two knives offered by defendant. From aught that appears from the record, the knife identified by the state’s witnesses fit within the range stated in the coroner’s report and there was no further need for a graphic demonstration of the dimensions of the knife. We do not believe justice requires opening this “Pandora’s box” of allowing in evidence otherwise unrelated items of like kind in order to demonstrate common units of measurement, particularly where the jury already has in evidence the alleged murder weapon and a ruler for comparison. The cases of Lackey v. State,
V. Sequestering the Jury
Defendant contends that “the coercive effect of sequestration” in this case is error. The trial judge had asked the jury if they wished to continue deliberations, at about 9:05 p. m., and a majority of those expressing a desire replied affirmatively. The court did allow thе jury a break shortly after this; defendant contends they should have been allowed a dinner break. We have previously set out the incident of defendant’s absence, and defendant contends that all of this procedure burdens and prejudices this defendant to a reversal of his conviction.
The question here is whether the trial judge clearly abused his discretion as to conditions and duration of deliberations.
V\Jt
hold he did not. Compare Martin v. State,
VI. Continuance
Defendant next argues that his motion for a continuance on trial day should have been granted due to this being a capital case, the circumstances of the case, and the reluctance of defense counsel to bеgin the- case with no objection from the state. A long discourse is contained in the record as to this motion by defense counsel, and defendant in his brief summarizes it by saying the motion was based on two grounds, absence of non-subpoenaed witnesses and defense counsel’s statement that he was not prepared to try the case.
The matter of a trial continuance is аnother matter in the court’s discretion, and the question again is whether there was a clear abuse of that discretion. Boswell v. State, supra; Butler v. State,
VII. Motion to Éxclude
Defendant argues as error the trial judge’s denial of his motion to exclude the state’s evidence. His contention here is that the coroner’s report of a four to six inch knife introduced irreconcilible conflict and reasonable doubt into the case in view of thе eye-witness Jones’ description of the knife as a “big blade”. Assuming for the moment that the grounds stated in support of this motion at the trial were specific enough, see Turner v. State,
We have considered those matters required by Title 15, Section 389 of our Code, and find no error. The judgment below is due to be affirmed.
The foregoing opinion was prepared by Honorable CARLTON MAYHALL, Jr., Circuit Judge, temporarily on duty on this Court pursuant to subsection (4) of Section 38, Title 13, Code of Alabama (1940 as amended); the Court has adopted his opinion as its own.
The judgment below is hereby affirmed.
Affirmed.