Amos v. State

96 Ala. 120 | Ala. | 1892

STONE, C. J".

1. One of tlie qualifications of a juror is that be should be a resident of tlie county in which he is summoned to serve on tlie jury, whether grand or petit. What constitutes a personal resident of any county or place has been repeatedly decided by this court. Rush, who was summoned as a special juror for the trial of tlie present Sase, is not shown to be a non-resident of DeKalb county. The fact that he did not know whether he lived in Jackson or DeKalb county is out-weighed by the additional fact that he claimed DeKalb county as the county of his residence, and had been living there and boarding in said county for ten years. His sworn statement to this effect was sufficient to make him a competent juror, and it was not error to put said juror upon the defendant.

2. There was no error in excluding the testimony of the witness Dr. Roden in reference to the character of the deceased. At the time the questions were asked touching the character of the deceased, no evidence had been introduced which rendered an inquiry as to his character admissible. The character of the deceased for turbulence ox violence is only admissible as evidence for the accused in cases of homicide when it tends to qualify or explain the conduct of the deceased, or to illustrate the circumstances attending the homicide, and which, when so qualified, explained or illustrated, have the tendency to produce in the mind of the accused a reasonable belief of imminent danger, or which tends to aggravate the conduct of the deceased in such a way as will mitigate the offense to a lower degree. King v. The State, 90 Ala. 612; Lang v. The State, 84 Ala. 1; Franklin v. The State, 29 Ala. 14. At the time the questions pertaining to the character of the deceased were asked Dr. Roden, there had been introduced in evidence no facts which, if qualified or explained by the character of the deceased, though desperate and blood-thirsty, could tend to afford defendant any reasonable ground to believe he was, at the time, in peril. They were, therefore, properly excluded at this stage of the trial. Furthermore, the defendant could not have been injured by this ruling, because the record shows that he was permitted to make this proof later in the progress of the trial.

3. The court erred in allowing the witness Bates to testify in answer to the question, “Did either one of the other Amoses (meaning Bud and Tobe) liave anything?” This witness answered to said question saying : “Yes, sir, Bud Amos was toting a Chopping axe.” We can not perceive the relevancy of this testimony. Although the indictment charges Brut Amos, Rube Amos and Tobe Amos _ with the murder of Will Fuller, only Rube Amos was on trial in the present proceedings. The record contains no proof of a conspiracy; but tends rather to show that Bud Amos had no connection whatever with the killing. It is not our province to say whether or not this testimony prejudiced the jury against Rube Amos, who was the only person on trial.

4. The question asked the witness Slaton on cross examination in reference to the character of the woman Liz Regan should have been allowed. It is the policy of the law to allow .greater latitude on cross examination. While it. is often the case that the relevancy of any particular question, considered without reference to the other facts and circumstances of the case could not be perceived, still it is equally true that if such questions were not allowed on cross examination, the ends of justice would often be thwarted. . The complaint of the defendant against the deceased was that he was trespassing upon the property of his dead wife. This trespass was committed together with the woman Liz Regan. If her character was such as was sought to be elicited by the question asked the witness Slaton, it would certainly aggravate the grievance, and would have given the defendant a more just ground of complaint, which would have warranted him in warning the deceased against the repetition of such a trespass.

5. The first question asked by the solicitor on cross-examination of the witness Upton, to which an exception was reserved, finds justification in the rule which is announced in Roscoe’s Criminal Evidence, in the following words: ‘A witness may be questioned on cross-examination not only on the subject of inquiry, but upon any other subject, however remote, for the purpose of testing his character for credibility, his memory, his means of knowledge, or his accuracy.” Roscoe’s Grim. Ev. (7th. Edn.) p. 140. The action of the court in overruling the objection to the other two questions asked the witness Upton, to which exceptions were reserved, can not find support in the broadest latitude that is allowed on cross-examination.

6. The court did not err in refusing to give either of the charges requested by the defendant. Each of them ignored the duty to retreat, as is announced by the repeated decisions of this court. — Davis The State, 92 Ala. 20; Rutledge v. The State, 98 Ala. 85 ; Gribbs v. The State, 86 Ala. 613; Poe v. The State, 87 Ala. 65 ; Mitchell v. The State, 60 Ala. 26 ; Eiland v. The State, 52 Ala. 322.

Reversed and remanded.