Redus v. State , 243 Ala. 320 ( 1942 )

In consideration of this case on original hearing, we tried to follow appellant's brief. As we understood that insistence it was not rested upon the point now made as to qualification of jurors. The appellant now says that in qualifying the jury separately and severally, the circuit solicitor (representing the state) was permitted by the court, over the repeated and timely objections of the defendant, to ask the jury: "Gentlemen, do you have any moral or religious scruples against capital punishment? Do you believe that the Bible, in any of its parts, taught that capital punishment was contrary to the Bible?" The court overruled the objections of the solicitor for defendant and the defendant then and there duly excepted.

Appellant's counsel assigned numerous grounds of objection, one being that under our Constitution of the United States every person has a right to worship just as he pleases and to interpret the Bible, and insists that the solicitor for the state had no right to inquire into matters personal and sacred to the jurors.

Appellant's counsel further says that the first proposition made in their brief was that "appellant was denied a trial by an impartial jury and was deprived of his life and liberty without due process of law under Section 6 of the Constitution of Alabama of 1901." Numerous cases were cited as authority for this point.

We will now consider some of the authorities cited by appellant's counsel on this point. In Oliver v. State, 232 Ala. 5,166 So. 615, the question was illegal separation of the jury during the trial. The case of Roan v. State, 225 Ala. 428,143 So. 454, touched the drawing and summoning of the venire. Leith v. State, 206 Ala. 439, 90 So. 687, dealt with the excusing of jurors whose names appeared on the venire served on defendant. Lakey v. State, 206 Ala. 180, 89 So. 605, the presence of a bailiff in the jury room for a short while was considered. Aylward v. State, 216 Ala. 218, 113 So. 22, dealt with the sheriff conversing with one of the empaneled jurors. In Satterfield v. State, 212 Ala. 349, 102 So. 691, it was held that a question by a juror to a bailiff who had entered the jury room was improper. Lowery v. State, 23 Ala. App. 191,122 So. 603, touched the conduct of the sheriff with the jury, and so in Taylor v. State, 18 Ala. App. 466, 93 So. 78. The case of Payne v. State, 226 Ala. 69, 145 So. 650, dealt with the separation of the jury after the trial had commenced. Butler v. State, 72 Ala. 179, considered separation of the jury as the same misconduct after the trial had begun. It is thus evident from the foregoing that the authorities cited by appellant's counsel are not in point.

The Act of 1919, p. 1039, has been frequently considered by this court and the codification thereof is contained in the Code of 1940, T. 30, §§ 63 and 64. It has been recently held that the voir dire examination of jurors as to qualification and the course and extent thereof is largely within the court's discretion. Rose v. Magro, 220 Ala. 120, 124 So. 296; Code 1940, T. 30, § 55, Subsection 3; Hendry v. State, 215 Ala. 635,112 So. 212; Gholston v. State, 221 Ala. 556, 130 So. 69. In the qualification by the court and the information sought thereby, and the further examination by the solicitor, herein set out, there was no abuse of the sound discretion as a part of the voir dire examination of the panel from which the jury was selected.

Reasonable exercise of the right of examination of the jury in no wise touched the freedom guaranteed by the first and fourteenth amendments of the Federal Constitution nor was it touched by the opinion of the Supreme Court of the United States in Roscoe Jones v. City of Opelika, 316 U.S. 584,62 S.Ct. 1231, 86 L.Ed. 1691; Peterson v. State, 227 Ala. 361,150 So. 156; Louisville Nashville R. Co. v. Davis, 236 Ala. 191,181 So. 695; Leath v. Smith, 240 Ala. 639, 200 So. 623.

It follows from the foregoing that the statute in question did not authorize or empower the parties to "require the court to put such questions to the jury even when properly framed." Such matters are within the exercise of a sound discretion by the trial court.

The trial court in qualification of the venire from which the men for the jury were to be selected pursuant to the statute, Code 1940, T. 30, §§ 52, 55, 56, 57 and 60, which is codification of the Act of 1919, p. 1039 and Code 1923, §§ 8662, 8610, 8611, 8612, 8641, and in permitting the solicitor to propound questions to that venire as above indicated, committed no reversible error. It was declared in Rose v. Magro, 220 Ala. 120, 124 So. 296, that within the limits of propriety and pertinence the parties, within the sound discretion of the court had the right to reasonably and timely propound questions to jurors to enable such party or his counsel to intelligently exercise any rightful choice, though the matters of which inquiry are made by such counsel are not a disqualification under the statute. Such in effect are the general authorities that are cited. This statement of the rule has been adopted by this court in Gholston v. State, 221 Ala. 556,130 So. 69.

It results from the foregoing that the application for rehearing should be and the same is overruled.

The date set for the execution of the sentence of the law on the defendant having passed pending this appeal, it is hereby ordered by this court, that Friday, the 11th day of December, 1942, be and the same is hereby set for the execution of the sentence of the law on this defendant.

Affirmed. Date of execution set for Friday, December 11th, 1942.

All the Justices concur except LAWSON, J., not sitting.