Opinion
8 Div. 752.
April 11, 1939.
Appeal from Circuit Court, Madison County; Schuyler H. Richardson, Judge.
Silas B. Worley was convicted of manslaughter in the first degree, and he appeals.
Affirmed.
Griffin Ford, of Huntsville, for appellant.
A defendant charged with the commission of a crime is entitled to a trial before an impartial jury. Jones v. State, 97 Miss. 269, 52 So. 791; State v. Giron, 52 La. Ann. 491, 26 So. 985; Lauderdale v. State, 22 Ala. App. 52, 112 So. 92; Pointer v. State, 24 Ala. App. 23, 129 So. 787; 24 Cyc. 289.
Thos. S. Lawson, Atty. Gen., and L. L. Mooneyham, Asst. Atty. Gen., for the State.
A finding of the court, sitting without a jury, on oral testimony of witnesses, will not be reversed unless plainly erroneous. Scruggs v. State, 165 Ala. 121, 51 So. 302; Stokes v. State, 5 Ala. App. 159, 59 So. 310; Summers v. State, 20 Ala. App. 19, 100 So. 456; Bertalson v. State, 21 Ala. App. 617, 110 So. 913. Court's refusal to grant a new trial will not be disturbed unless palpably wrong. Cobb v. Malone, 92 Ala. 630, 9 So. 738; Moore v. State, 24 Ala. App. 581, 139 So. 120; Nichols v. State, 27 Ala. App. 435, 173 So. 652. Objection that a juror is disqualified must be raised before jury is qualified. The right of parties to test jurors on voir dire is secured by statute, and after opportunity to examine is given and jury is accepted, objection thereafter made comes too late. Code 1923, §§ 8659, 8662; Henry v. State, 77 Ala. 75; Carson v. Pointer, 11 Ala. App. 462, 66 So. 910; Batson v. State, 216 Ala. 275, 113 So. 300; Edwards v. State, ante, p. 409, 186 So. 582.
The indictment charged the defendant with murder in the first degree. On the trial, after hearing the evidence and the charge of the Court, the jury returned a verdict of manslaughter in the first degree and fixed the punishment at five years in the penitentiary. Upon this verdict the judgment was rendered, and from that judgment was taken this appeal.
After verdict and judgment, the defendant made motion to set aside the verdict and for a new trial, upon the grounds that one of the jurors, trying the case, was prejudiced against the defendant; and that the verdict was due to a bias on the part of this juror.
On this appeal no insistence is made that the trial court committed error, either in its rulings on the introduction of evidence or in its charge to the jury; but, the claim is made that one of the jurors trying the case had, prior to the trial, expressed a bias against this defendant and an intention to see that he was convicted.
Upon this alleged bias on the part of one of the jurors trying the case, the insistence is made that the defendant has not had a fair and impartial trial; and, for that reason, a new trial should be granted.
We may observe, in the first place, that the testimony on the main trial, on behalf of the State, was amply sufficient to have sustained a verdict in a higher degree than that returned by the jury, and from a reading of the entire testimony no implication of bias arises by reason of a verdict returned not justified by the testimony; which fact is always to be considered in passing upon a motion of this character.
The evidence on the motion for a new trial was taken ore tenus, and addressed itself to the trial judge, before whom the motion was heard, (1st) as to whether or not the fact of bias, as alleged in the motion, had been proven; and (2nd) was the character of the testimony offered such as to impress the Judge that a different verdict would probably have been rendered.
The trial judge had the witnesses before him; he had the advantage of seeing the witnesses and hearing the testimony. His judgment is not to be disturbed, unless his decision was palpably wrong. We cannot say such is the case. Cobb v. Malone Collins, 92 Ala. 630, 9 So. 738; Moore v. State, 24 Ala. App. 581, 139 So. 120; Nichols v. State, 27 Ala. App. 435, 173 So. 652.
Under the facts in this case, we would not be justified in holding that the trial court committed error in refusing to grant the motion for a new trial.
The record being otherwise free from error, the judgment is affirmed.
Affirmed.