Woodley v. State

103 Ala. 23 | Ala. | 1893

COLEMAN, J.

The appellants were convicted of murder in the first degree, and sentenced to suffer death. With but two or three exceptions, the questions reserved for review were considered and disposed of in the case of Ezell v. The State, p. 8, in which a decision was rendered during the present weelt of the court. The record shows that one Jim Calloway was indicted jointly with appellants ; that when the prisoners were arraigned, Jim Calloway entered a plea of “guilty,” and the appellants each pleaded to the indictment “not guilty.” A jury was then empanelled against the objection of Calloway, who claimed the right to be jointly tried with the appellants, and charged with the duty of ascertaining the degree of his guilt, and fixing his punishment; and upon the verdict of the jury the court pronounced the sentence of the law. The appellants were then put upon trial, upon their plea of “not guilty,” and a different jury empanelled and sworn for their trial, against their objection. The ground of objection was that having been jointly indicted with Calloway, they claimed the light to be tried jointly with him.

Formerly a severance was a matter of discretion with the trial court. The statute now reads as follows, section 4451 of the Code : “When two or more defendants are jointly indicted, they may be tried, either jointly or separately, as either may elect.” Under the literal wording of this statute if two were indicted jointly, and one of the parties should elect to be tried jointly, and the other separately, the trial court would be placed in a difficult, position. The statute, evidently intended to give any person indicted jointly with others, the right to be tried separately, as he may elect. The manifest intention of the statute was to take from the court its discretionary power to grant or refuse a severance, and confer upon either defendant the right to be tried separately at his election. _ •

In the case of Thompson et al v. The State, 25 Ala. 41, it was held that, “When several persons are jointly indicted for an assault and battery, and one of them pleads guilty, the others, who pleaded not guilty, cannot claim, as a matter of right, to be tried separately, from him.” If this principle be correct, then it follows that when several are jointly indicted, and one pleads guilty, and the others not guilty, and both pleas are entered, that there is not a severance by operation of law. We have been unable to find any authority in support of the proposition as declared in the case of Thompson, supra.

In the case of Marler v. The State, 67 Ala. 55, Marler and one Redman were indicted jointly, and the latter was adjudged insane upon a separate trial of that issue. Subsequently, Marler was arraigned and tried alone. It was held that there had been a severance of the cases of the two defendants.

It is often the case in practice that one of two persons jointly indicted is ready for trial and the other not. If the court continues the case as to one, and the other is put upon trial, there is of necessity a severance.

The defendant Calloway when arraigned, voluntarily pleaded ‘ ‘guilty ” to the indictment. This he had a right to do. By his plea of guilty he waived his right to be jointly tried with the other defendants. They could interpose no objection to 1ns plea of guilty, and thereby prevent a severance. Suppose two were jointly indicted for grand larceny, and one enters a plea of “guilty” and .the other “not guilty.” There is necessarily a severance by operation of law as to the one pleading guilty, for nothing remains to be done as to the one who pleads guilty but to pronounce the sentence of the law. As to the other a jury must be empanelled to try the issue. The court did not err in holding that the plea of guilty by Calloway operated a severance. There is nothing in the Rule adopted June 21st, 1889, found in the preface to Yol. 86 Ala. Reports which militates against this conclusion.

After the sentence of the law was pronounced upon Calloway, he was a competent witness for the State against the other defendants. — Malachi v. The State, 89 Ala. 134 ; South v. The State, 86 Ala. 117 ; Henderson v. The State, 70 Ala. 23; 1 Bishop Or. Pro., § 1025.

The fact that the • venire served upon the defendants included the names of persons who served upon the jury that passed upon the issues submitted to them in the case against Colloway, was not a legal ground for quashing the venire. — Acts of 1890-91., p. 190. Such persons, when their names were drawn, were subject to challenge for cause. This the court allowed in each instance of such drawing.

The judgment of the court is sufficient in form. There is no error in the record.

The day for the execution of the sentence having passed, Friday, the 13th day of July, is appointed ; and the proper officer is charged with the duty of executing, on that day, the sentence of the law, adjudged by the trial court, upon each of said defendants.

Affirmed.