45 Ala. 57 | Ala. | 1871
The object or purpose of the evidence offered by the prisoner and rejected by the court, is not stated. We are unable to see that it would have had any legitimate influence to prove the innocence of the accused. We think it was commendable prudence on the part of the father tp avoid any conversation witli the accused a,s to
As it does not appear that any question of impeachment was raised, or for what purpose the proposed evidence wá» offered, it was irrelevant, and was properly rejected for that r ason. Nor are we able to see that the case is bettered by proposing to prove, in connection with the offered evidence, that the father, the day after the alleged assault, shot the accused in a difficulty about throwing stones at the children of the father, and not about the assault upon the daughter.
2. The second exception taken on the trial presents a question of more difficulty. It is thus stated in the bill of exceptions : “After the indictment had been read to the jury, and the defendant had pleaded not guilty, and after the evidence had been closed, but before the argument had commenced, the jury, under the charge of the court, but without consent expressed or objection raised; without any thing being said about it by the defendant or his counsel, were permitted to separate; and that, upon the reassembling of the jury, the defendant, by his counsel, moved the court to discharge the defendant upon the fact that the jury had been permitted to separate, and did separate without his consent or that of his counsel; which motion the court overruled, and the defendant excepted.”
I am not aware that this question has ever been decided in this State. I should be sorry to see the action of the court, in this case, ripen into a practice, but I am not prepared to hold, even in a capital case, that it would be sufficient cause to require the prisoner to be discharged. In my opinion, it should be considered a very strong, if not a conclusive reason, for setting aside the verdict and granting a new trial, not only in capital, but also in cases of all felonies.
In what cases the jury may be permitted to leave the presence of the court, unattended by an officer, and separate, upon examination it will be found that no settled, uniform rules of practice, upon this subject, prevail in the courts of the several States in this country, where the
Mr. Bishop, in his valuable work on Criminal Procedure, vol. 1, § 814, says: “ It is a doctrine prevailing almost everywhere in this country, that, in capital cases, the jury can never be permitted to leave the presence of the court, even on adjournment over night, except in charge of a sworn officer, and then they must be kept together.” Yet, he says, “ in South Carolina it is held to be within the discretion of the court, even in capital cases, to permit the jury to separate at the adjournment from day to day.” The like doctrine and practice appear to prevail in Connecticut. This author also says : “ In some of the States, the rule which forbids the court to permit a separation, extends to felonies not capital.”
This we think the better and safer practice, and we recommend it as a rule for the government of the courts in this State. We have not been able to find any case, either in England or this country, where it has been held that the permission of the court, even against the consent of the accused, to let the jury separate after the trial has commenced and witnesses examined, was a sufficient cause for which the accused had a right to demand his discharge. That was the motion in this case, and we think it was properly overruled.
Let the judgment of the court below be affirmed.