Simmons v. State

| Ala. | Jan 19, 1911

SAYRE, J.

When the juror Parks was called, the defendant showed to the court that the solicitor for the state, aftc-r the parties had announced ready for trial, but before a jury had been called to try the case, had taken the juror into a room, and had asked him whether a certain juror then in the box was nervous, and if sitting on the case would affect him, but had said nothing tcf him about tlie case. On these facts the defendant challenged the juror for cause. The court overruled the challenge, and the defendant excepted.

There was no error in the court’s ruling. This court has condemned any improper conduct, however slight, on the part of jurors or parties, calculated to influence tlie jury in making up their verdict. In the recent case of Craig v. Pierson Lumber Co., 169 Ala. 548" court="Ala." date_filed="1910-11-15" href="https://app.midpage.ai/document/craig--co-v-pierson-lumber-co-7365323?utm_source=webapp" opinion_id="7365323">169 Ala. 548, 53 South. 803, we said: “So delicate are the balances in weighing justice that what might seem trivial under some circumstances would turn the scales to its perversion. Not only the evil in such cases but the appearance of evil, if possible, should be avoided.” We are unable, however, on thé facts here presented, to see that the solicitor was guilty of such conduct as would tend to improperly influence the juror away from an impartial judgment. If the solicitor’s consultation with the juror in regard to the physical fitness of one who might sit with him in the trial of the case is to be taken as a form of flattering attention, which ought to have been avoided, it seems so subtle as to be negligible, too hypercritical to give substantial basis for a reversal.

Charge T, requested by the defendant, was properly refused. Such charges' invade the province of the jury. — Smith v. State, 88 Ala. 23" court="Ala." date_filed="1889-11-15" href="https://app.midpage.ai/document/smith-v-state-6513631?utm_source=webapp" opinion_id="6513631">88 Ala. 23, 7 South. 103; Gibson v. State, 91 Ala. 64" court="Ala." date_filed="1890-11-15" href="https://app.midpage.ai/document/gibson-v-state-6514081?utm_source=webapp" opinion_id="6514081">91 Ala. 64, South. 171; Toliver v. State, 94 Ala. 111" court="Ala." date_filed="1891-11-15" href="https://app.midpage.ai/document/toliver-v-state-6514514?utm_source=webapp" opinion_id="6514514">94 Ala. 111, 10 South. 428.

Charge 2 was misleading. It seems to assume, and would have tended to lead the jury to the conclusion, that they need consider only two alternatives, to wit, manslaughter or acquittal; whereas, there was ample evidence to .support- the charge of murder in the second degree, of which the defendant was convicted. The charge was well refused. .

There is no error in the record, and the judgment and sentence must be affirmed.

Affirmed.

Dowdell, C. J., and Anderson and McClellan, JJ., concur.