52 So. 467 | Ala. | 1910
The case made by appellant is as follows: The accused was indicted, tried, and convicted for the murder of Nettie Edmonson. The indictment was found at a regular term of the Morgan county law and equity court by a grand jury organized under an order of the court based on the failure of
It appears that Tom Edmonson was a simple-minded man and incapable of transacting much business; that during the afternoon preceding the fire he was at his-, home, and was mad; that, some days-or weeks after-the fire, blood was found in and about the home of the defendant, and also out near the graveyard, some distance from Tom Edmonson’s house and that of defendant. A coroner’s jury was held at the home of' the defendant the day following the fire, which a great number of people attended. At this investigation no-blood was seen, at any of these various places about defendant’s, as was found many days or weeks after-wards. The day after the fire, parties were searching in almost every direction from the Edmonson home, and in and around the graveyard. The burial of the-remains of Tom Edmonson’s family occurred at this graveyard, drawing great crowds of people; but no one discovered the blood in the sedge grass, which was found thereafter, only 10 or 15 feet from the public highway. Numerous witnesses testified that the blood afterwards found was not about the premises the day after the fire. The first coroner’s jury returned the
The record discloses that defendant was alleged to have made a statement to one Gib Luker, his 18 year old nephew, on the morning before the night of the fire and broached the conversation in this manner: “1 will tell you something, if you will promise not to tell it, and I said I would not tell. He made me take 20 cents not to tell it. He then said he had killed Edmonson and his family, and for me to go to school and not tell anybody, and when he handed me the money he said not to look sad. that day. I went on to school and stayed at school all day long and did not tell any one. When I left school, I came back to defendant’s house the same way I had gone that morning, and when I was passing his house he came out and walked with me •down the path a little piece and asked me if I had told any one, and I told him that I had not. He then said that he was' going to put them all in the house and burn them up that night. That that morning, when he went up there to feed, the whole family got after him, some with sticks, some with rocks, some with knives, and he had to kill them. He said that Nettie was pretty, high strung and like to have gotten away from him; that he ran her up the road to the graveyard and caught her and had a struggle with her, and she like to have gotten away. He said she was lying out in the old field up there, and that he was going to put them all in the house and set it afire and theu hallow and then ring the bell. He told me to tell my father and mother when they saw the fire down there that night that they had better not come down there.”
The testimony of expert witnesses showed that the blood in the human body would coagulate in 30 minutes after death.
It appears that the defendant was, before the tragedy, a man of good character.
The defendant made a motion to quash the indictment. The five grounds of the motion presented, in varying form, but two legal propositions: (1) That the indictment was not found by a grand jury drawn in the presence of the officers designated by law; (2) that the indictment was grounded upon an order of the court for the organization of the grand jury, which order was without any warrant in the statute or was contrary to its provisions.
After the introduction of the evidence addressed to the various grounds of the motion, the court overruled the same, and the defendant excepted. The defendant also raised the same questions in the form of six pleas in abatement. Pleas 4, 5, and 6 were demurred out, and issue joined on pleas 1, 2, and 3, and the same evidence was introduced in support of the pleas as was introduced to the motion, whereupon the court gave to the jury the general affirmative charge at the request of the state, and the defendant excepted.
The objections to the indictment were grounded upon the following order of the court, made at a regular term thereof, for a grand jury for said term: “Monday morning, February 1, 1909. State of Alabama,
Sections 6 and 7 of the act creating the Morgan county law and equity court provide that the court shall have two regular terms each year, known as the spring and fall terms of court, the spring term to begin on the first Monday in February and end June 30th, and the fall term to begin the first Monday in September and end December 31st. The sessions of the court to be held during these terms are left to the discretion of the presiding judge, fixed by an order entered of record. Local Acts 1907, p. 193. Section 29 of this act undertakes to provide against any failure of the jury commissioners to perform their duty in this instance, as well as to provide against other contingencies that might
It is well recognized in this court that objection to the formation of a grand jury may be allowed in two classes of cases: (1) When not drawn in the presence of the officers designated by law; (2) when there is some order of the court or action of the judge appearing of record relating to the organization of the grand jury, which is contrary to or unauthorized by the statute, notwithstanding section 7572 of the Code. — Nordan v. State, 143 Ala. 22, 39 South. 406; Fryer v. State, 146 Ala. 7, 41 South. 172; Billingslea v. State, 68 Ala, 490; Cross v. State, 63 Ala. 40; Scott v. State, 63 Ala. 59; O’Byrnes v. State, 51 Ala. 27-29; Berry v. State, 63 Ala. 126, 127; Tucker v. State, 152 Ala. 1, 44 South. 587, 588.
Section 39 of the local act above referred to, as last amended, among other things provides as follows!: “That at any time during the vacation or during any regular term of said court if, in the opinion of the judge of this court, a session of the court shall be held, the judge of this court, upon making a minute entry therefor, is hereby empowered and authorized, to declare this court in session for such purpose or purposes, that he may deem proper, and the judge of said court be and he is hereby authorized to order a grand jury summoned and impaneled to consider matters that may come before it, and which said grand jury may be summoned immediately and in whatsoever manner
The indictment was found at a regular term of the court, and not at a special or adjourned term; and, consequently, sections 7260 and 7261, nor 3249, Code 1907, do not apply. It has been held by this court that there is a field of operation for each of these statutes (Holland's Case, 162 Ala. 5, 50 South. 215); but this case is not within the scope of any one of the three; it falls within the scope of section 7275 of the Code, which requires the judge to draw the grand jurors from the jury box when no grand jury has been drawn or, from any other cause, none is returned for service for any term of the court. The law requiring the judge to draw the jury, he would have no authority in this case to order the commissioners to draw it. But the local statute under which this grand jury was organized authorizes the judge “to order a grand jury summoned and impaneled * * * in whatever manner he may direct in the minute entry.” This, of course, authorized the proceedings by which the grand jury was drawn, summoned, and organized.
Section 7572 of the Code is as follows: “No objection can be taken to an indictment, by plea in abatement, or otherwise, on the ground that any member of the grand jury was not legally qualified, or that the grand jurors were not legally drawn or summoned, or on any other ground going to the formation of the .grand jury, except that the jurors were not drawn in the presence of the officers designated by law; and neither this objection nor any other can be taken to the formation of a special grand jury summoned by the direction of the court.”
It therefore clearly appears that the grand jury in this case was drawn by the jury commissioners of Mor
During the rebuttal examination of one of the state’s witnesses, the solicitor propounded to the witness the following question: “Detail what Rufe Luker said to yon when he came to you to swear out the warrant for the arrest of the defendant.” The defendant objected to the question, assigning proper grounds but the court overruled his objection and allowed the witness to answer. He answered as follows: “Rufe said :■ Tome out here! I’ve, or you’ve, got to arrest Bob Clemmons, and do it now.’ He said that Bob- had threatened to kill him and his boy Gib, and I asked him why, and he said that the defendant had told him and his boy that he had killed Tom Edmonson and his, whole family and had put them in the house and barn and burned them up.” The defendant then moved to-exclude the answer, upon the same grounds assigned to the question but the court overruled his motion, to which actions of the court as to the question and the answer the defendant duly excepted. This would clearly be reversible error, but for the recital in the bill of' exceptions that the defendant had brought out a part of this conversation on cross-examination. If this was
The defendant, in order to rebut or disprove the testimony of the witness Luker and his son, who testified as to confessions made by the defendant on the morning of the day preceding the night of the fire — -when the dead bodies, in which at that time the blood was warm, were found in the burning houses — offered physicians and surgeons as experts to prove that blood would congulate and cease to flow in the human body from one-half to an hour after death. To rebut this evidence of the experts, the state introduced a witness, one W. E. Tucker, who was shown not to be a practicing physician or surgeon, and to have no scientific knowledge on the subject, but who was shown to have had some experience as to the flow of blood from two dead bodiés; and he ivas allowed by the court, over defendant’s objections and exceptions, to relate his experience as to the time within which, after death, blood flowed from those two bodies, and to give his opinion that blood in the human body would not coagulate in one-half to an hour after death. This was clearly error. The first question sought to introduce a species of comparisons or experiment, as to the flow of blood from dead bodies, which was unwarranted by the law or rules of evidence. The conditions of the bodies in the two cases as to which the witness testified, and the manner in which death was inflicted in those cases, were so entirely different from the conditions and mode of death in the case at bar that it would be dangerous to allow such comparisons.— Mayfield’s Dig vol. 5, p. 404, subd. 50; volume 1, p. 340. The matter being inquired about, viz., the time in which the blood would coagulate and cease to flow in dead bodies, was certainly the subject of expert evidence, and not within the common knowledge of the
As a part of the oral charge of the court, the jury were instructed as follows: “It is not on the defendant to prove that some one else committed the crime; but it is upon him, after the state has shown a prima facie case, lo establish his innocence.” To this part of the charge the defendant excepted. This much was error. It is not upon the accused to ■ establish his innocence, when the
This court has ruled as follows upon these questions: The burden of proof is always upon the state, and is never shifted upon the defendant, except as to special defenses provided by statute, such as insanity, former conviction, etc. — Wharton v. State, 73 Ala. 366; Whitten v. State, 115 Ala. 72, 22 South. 483; Martin’s Case, 119 Ala. 1, 25 South. 255. Under an indictment for an assault with intent to murder, the burden of proving the alleged intent, as well as the other facts which constitute the felony, is on the state; and a charge which selects a portion only of the facts disclosed by the testimony, and instructs the jury that, if these facts are proved, “the law presumes that the act was malicious,” and that the defendant “intended to kill,” is erroneous, because it shifts the burden of proof, and loses sight of the recognized distinction between civil and criminal cases in the measure of proof. Nor is the error cured by further instructing them, in a subsequent portion of the charge, that these presumptions of law only arise in the absence of evidence tending to quality or explain the selected facts, and may be rebutted, qualified, or explained away by the evidence; “so that, if they find the facts upon which these presumptions of law arise, with .other evidence tending to qualify or explain them, it will be their duty to consider all the evidence in connection, and if, upon the whole evidence, they entertained a reasonable doubt, they should acquit the defendant.” — Ogletree v. State, 28 Ala. 693. Strictly speaking, the burden of proof is never on the defendant to establish his innocence, or to disprove the facts necessary to establish the crime for which he is charged. In all
The court, among other things, and as a part of the oral charge, also instructed the jury as follows: “I charge, you as a matter of law that the corpus delicti has been proven in this case, provided you believe the evidence.” This was also error to reverse. It was certainly a charge upon the effect of the evidence, and in violation of section 5362 of the Code. It was likewise an invasion of the province of the jury. While there was sufficient evidence in the case as to the proof of the corpus delicti, if the jury so found, to support a conviction, and to authorize the admission of evidence as to confessions by the defendant, yet the sufficiency thereof was a question for the jury, and not for the court. This court, in Winslow’s Case, 76 Ala. 47, spoke on this subject as follows: “We cannot assent to the proposition insisted on that the sufficiency of the proof of the corpus delicti is a question for the court, and not for the jury. Greenleaf * * * observes: ‘The proof
The court, also as a part of its oral charge, instructed the jury that the alleged confession of the accused was voluntary, provided they believed the evidence. This was likewise a charge upon the effect of the evidence and an invasion of the province of the jury. Immediately following this expression as to the confession’s being voluntary, the trial court instructed the jury as follows: “And if you believe these confession of the defendant, and the other evidence in the case, the defendant is guilty.” This was error, for the same reasons assigned to the other parts of the oral charge, and for the further reason that it would have been improper if requested by the state. The evidence was in conflict as to material ingredients of the offense, and palpably so, as to the accused’s being the guilty party. If the evidence of the defendant was true, he was not guilty, and the jury had the right to believe him.
The evidence being thus in conflict, and much of it resting in inference, the affirmative charge could not be given, even with the usual hypothesis — “if requested.” TTpon this question this court has spoken as follows: “In the absence of conflicting testimony to the fact of
The judgment is reversed, and the cause is remanded,
Reversed and remanded.