Davis v. State

| Ala. | Nov 15, 1899

DOWDELL, J.

The sheriff’s return on the venire showed twenty-one of the persons drawn • as special jurors to be “not found.” There was no evidence of any failure on the part of the sheriff in the discharge of his duty to make diligent search for these persons. The presumption of the law, in the absence of any evidente to the Contrary, is, that this officer discharged his duty in executing the writ for the venire. There was no error in overruling the defendant’s motion to quash.—Parson’s Case, 81 Ala. 577" court="Ala." date_filed="1886-12-15" href="https://app.midpage.ai/document/parsons-v-state-6512720?utm_source=webapp" opinion_id="6512720">81 Ala. 577; Webb’s Case, 100 Ala. 47" court="Ala." date_filed="1893-11-15" href="https://app.midpage.ai/document/webb-v-state-6515304?utm_source=webapp" opinion_id="6515304">100 Ala. 47.

There is no statute requiring or authorizing the court to complete the special venire by supplying the places of the special jurors drawn and who were returned “not found” by the sheriff before the venire was exhausted in making up the jury to try the case. The motion made by the defendant for this purpose was properly overruled.

Threats, or statements in the nature of threats, preparation for the commission of the crime, the conduct and actions of the defendant at and near the time and place of the homicide, the tracks near the dead body, the shoes of the defendant corresponding with the tracks, the clothing worn by the defendant about the time of the homicide, with indications of blood on it, are all pertinent and relevant facts in a. trial for murder, and admissible in evidence. The evidence objected to by the defendant was in nature and character inculpatory, and the exceptions to the rulings of the court in its admission are wholly without merit.

There was no testimony even tending to show that defendant and deceased were husband and wife, but on the contrary all of the testimony, even that of the defendant himself, shows that they were not married, and that their connection and living together was adulterous. Moreover, whether the defendant and deceased were living together in adultery, or as husband and wife, could in no way affect the degree of the crime, under the evidence in the case.

There is nothing in the objection made to the testimony of the witness Stephens as to who made the tracks at the point in the ditch where witness saw the defendant come out of the ditch. It is certainly competent for a witness to testify to his knowledge of a material and relevant fact. There ivas hut. one set of. tracks at the point named. The witness having seen the defendant just a short time before the body of the deceased was discovered, at the point mentioned, this' was sufficient upon Avhich to predicate his knowledge as to who made the tracks, as much so as if he had been standing by the defendant and saw him impress his foot upon th.e earth. The evidence sIioavs that there Avas no one else other than the defendant, who could have made the tracks at the point inquired about.

The first and third charges requested by the defendant, related to the relations aaíiícIi previously existed betAveen defendant and deceased, as to Avhether they were married or not, and were properly refused by the court.

The second charge requested is palpably erroneous in that it, requires the State to prove a motive for the homicide.—Hornsby's Case, 94 Ala. 55" court="Ala." date_filed="1891-11-15" href="https://app.midpage.ai/document/hornsby-v-state-6514498?utm_source=webapp" opinion_id="6514498">94 Ala. 55.

We find no error in the record and'the judgment of the city court must be affirmed.