Ex parte Grimmett, 228 Ala. 1, 152 So. 263 (1933); Lloyd v. State, 50 Ala. App. 646, 282 So.2d 85 (1973); Hudson v. State, 48 Ala. App. 703, 267 So.2d 494 (1972). It is reversible error to allow a clerk to assume a judicial role in a Court and for the judge to be absent during argument of counsel. 23 C.J.S. Criminal Law § 972 at 882; Parham v. State, 47 Ala. App. 76, 250 So.2d 613 (1971); Smith v. State, 230 Ala. 18, 158 So. 808 (1935); Waller v. State, 40 Ala. 325 (1867); Raab v. State, 62 Okl.Cr. 361, 71 P.2d 773 (1937). It is reversible error for a bailiff to assume any judicial function in a case and the authority of a trial judge to preside over a case cannot be delegated to a bailiff.
"Opinion of the Justices No. 187, 280 Ala. 653, 658, 197 So.2d 456, 461 (1967). Further, the courts of this State have recognized that judicial functions, such as declaring a mistrial, Parham v. State, 47 Ala.App. 76, 250 So.2d 613, 617 (Ala. Crim.App. 1971), or striking jurors, Russaw v. State, 572 So.2d 1288 (Ala.Crim. App. 1990), may not be delegated in the absence of specific statutory authority."
Opinion of the Justices No. 187, 280 Ala. 653, 658, 197 So.2d 456, 461 (1967). Further, the courts of this State have recognized that judicial functions, such as declaring a mistrial, Parham v. State, 47 Ala.App. 76, 250 So.2d 613, 617 (Ala.Crim.App. 1971), or striking jurors, Russaw v. State, 572 So.2d 1288 (Ala.Crim.App. 1990), may not be delegated in the absence of specific statutory authority. To the extent that the CMO would appoint a special master who would conduct jury trials with respect to the claims of the specified 25-member plaintiff groups with the same authority as that constitutionally vested in the trial court, such an appointment would be an improper delegation of judicial power and would exceed the trial court's discretion.
See also Lindsay v. State, 456 So.2d 383 (Ala.Cr.App. 1983), aff'd, 456 So.2d 393 (Ala. 1984), cert. denied, 470 U.S. 1023, 105 S.Ct. 1384, 84 L.Ed.2d 403 (1985); Parham v. State, 47 Ala. App. 76, 250 So.2d 613 (1971). Hallman v. State, 36 Ala. App. 592, 61 So.2d 857 (1952).
The court correctly declared a mistrial when one of the jurors notified it of a medical emergency in the juror's family. Parham v. State, 47 Ala. App. 76, 250 So.2d 613 (1971). Section 12-16-233 states:
"The trial court is under a duty not to discharge a jury and declare a mistrial if there is any reasonable probability that they can agree. Parham v. State, 47 Ala. App. 76, 250 So.2d 618 (1971). The trial court by being present is in a much better position than an appellate court to determine the jury's ability to decide a defendant's fate fairly and justly.
"Section 9 of the Alabama Constitution of 1901 and Alabama Code Section 12-16-233 (1975) give the trial judge the authority and discretion to discharge a jury upon a failure to agree. Parham v. State, 285 Ala. 334, 231 So.2d 899 (1970); Parham v. State, 47 Ala. App. 76, 250 So.2d 613 (1971); Orr v. State, 40 Ala. App. 45, 111 So.2d 627 (1958), affirmed, 269 Ala. 176, 111 So.2d 639 (1959). A jury's inability to agree either on a verdict or punishment is a proper reason for the declaration of a mistrial.
He argues that the court's action in not requiring the jury on the first trial to fix the punishment and in not imposing a sentence in accordance with a verdict of the jury is to be likened to an order of a mistrial, which when erroneous and not expressly or impliedly consented to by defendant, would form the basis for a valid plea of former jeopardy. He relies particularly upon Parham v. State, 47 Ala. App. 76, 250 So.2d 613, 618 (1971), in which it was held that former jeopardy had occurred on the first trial and became a bar to the second trial, by reason of the discharge of the jury in the first trial pursuant to action of the trial court, without the knowledge or consent of defendant or his attorney in "(1) instructing the bailiff that he, the bailiff, (rather than the court) could let the jury go [if the jury failed to reach a verdict by 10:00 P.M.]; and (2) entering up a mistrial on the foundation of this irregularity." No such circumstance as found in Parham is involved in the instant case, and no action that can be likened to a mistrial occurred.
Section 9 of the Alabama Constitution of 1901 and Alabama Code Section 12-16-233 (1975) give the trial judge the authority and discretion to discharge a jury upon a failure to agree. Parham v. State, 285 Ala. 334, 231 So.2d 899 (1970); Parham v. State, 47 Ala. App. 76, 250 So.2d 613 (1971); Orr v. State, 40 Ala. App. 45, 111 So.2d 627 (1958), affirmed, 269 Ala. 176, 111 So.2d 639 (1959). A jury's inability to agree either on a verdict or punishment is a proper reason for the declaration of a mistrial.
The trial court is under a duty not to discharge a jury and declare a mistrial if there is any reasonable probability that they can agree. Parham v. State, 47 Ala. App. 76, 250 So.2d 613 (1971). The trial court by being present is in a much better position than an appellate court to determine the jury's ability to decide a defendant's fate fairly and justly.