Davis v. State
131 Ala. 10
Ala.
1901
Check Treatment
.TYSON, J.-

-Aftеr a plea to the merits, a motion to quash the indictment and a plea in abatement come too late. — Jackson v. The State, 74 Ala. 26; Horton v. The State, 47 Ala. 58.

It is a matter of discretion, not revisable, with the trial court whether the accused shall be permitted to withdraw the plea of not guilty and interpose 'a plea in abatement. — Williams v. The State, 3 Stew. 454; Hubbard v. The State, 72 Ala. 164.

*14The motion to quash the venire facias jwratores, as did the motion to quash the indictment and the plea in abatement proposed to be filed, proceeded solely upon the theory that the act of December 19, 1876, (Acts 1876-77, p. 190), entitled an act “To securе more effectually competent and well qualified jurors in the counties of Montgomery, Lowndes, Autauga, Dallas, Perry and Bullock,” is still in force and of effect. Manifestly, if it was repealed by the act of February 28th, 1887, the motion is without merit. The act of February ‍‌​​‌​‌‌​‌​​​​​​‌‌‌​‌‌​​​‌​‌‌​‌​‌‌‌‌​​​​‌‌‌‌‌‌​‌​‍28th (Acts 1886-87, p. 151), is entitled an act, “To more effectually secure compеtent and well qualified jurors in the several counties of this State, with the exception that the provisions of this act shall not apply to the counties of Henry, Mobilе, Dallas, Talladega, Clay, Marengo, Cherokee, Etowah, St. Clair, Coffee, Dale, Geneva, Marshall and Montgomery.” It will be noted that Lowndes is not one of the counties excepted from the operation of this act. Being one of the several counties in this State, it is by the very terms of the act included within its provisions. Section 17 of this act reads as follows: “Bе it further enacted, That section 4782 of the 'Code of Alabama, and all other laws and parts of lays, general and special, conflicting with the provisions of this act, be and the same are hereby repealed; but all laws now in force in relation to jurors, their drawing, selecting or qualification, not in conflict with this act, are 'hereby continued in full force and effect,” etc., etc. A mere cursory examination and comparison of the provisions of the two acts under consideration will demonstrate their utter inconsistency and repugnancy, to say nothing of the inextricable confusion and perplexity which must inevitably result from an attempt to enforce both of them. For instance, under the former, the commissioners appointed by the governor for the selection and drawing of grand and petit jurors are required to meet on the first Monday in January in each year and to select from the householders and freeholders of the county such persons, as in their opinion are competent to serve as grand and jetit jurors, etc., having regard to their honesty, impartiality and intelligence, and forbidding the commis*15sioners from selecting any person not esteеmed in tlie community for his integrity, fair character and sound judgment or who is under the age of twenty-one years or over sixty years of age, or who is a habitual drunkard, or who is аffected with a permanent disease, etc. Under the latter, the members of the boards of revenue, not including ‍‌​​‌​‌‌​‌​​​​​​‌‌‌​‌‌​​​‌​‌‌​‌​‌‌‌‌​​​​‌‌‌‌‌‌​‌​‍the probate judge, compose the cоmmission, and it is made their duty to meet on the next day after adjournment of the last regular term of the court of county commissioners or session of the board of revenue held in each year and to select from the male residents of the county, over twenty-one and under sixty years of age, who are householders or freeholders, the names of all such рersons, not exempt from jury duty, as, in their opinion, are fit and competent to discharge the duties of grand and petit jurors with honesty, impartiality and intelligence, etс.

The conflict between the two provisions here referred to is perfectly apparent. It is scarcely necessary to point out that on the two lists of qualified jurors required to be made, if both acts are in force, that upon one we would have only the names of householders and freeholders while upon the other, we would have the names of householders without ‍‌​​‌​‌‌​‌​​​​​​‌‌‌​‌‌​​​‌​‌‌​‌​‌‌‌‌​​​​‌‌‌‌‌‌​‌​‍reference to whether they are freeholders, and the names of freeholders who may not be householders.

There are other conflicting provisions between the two acts not necessary to be pointed out, since the one designated is sufficient to show that the latter act necessarily repeals the former.

There wаs no error in overruling the motion of defendant to exclude the testimony of witness Broadnax as to what he heard on the outside of his store on the night of the alleged murder. This witness had testified to having heard the accused and the deceased quarrel-ling on the outside of his store and also other noise at the same time and рlace. Manifestly the fact of a quarrel between the deceased and defendant was entirely competent. As the motion was general, going to the stаtement of the witness as a whole as to what he heard, the court committed no error in overruling it, oven if the part, as to having heard other noise, was ob*16jectionable. — Jenkins v. The State, 82 Ala. 25; Ray v. The State, 126 Ala. 9.

On cross-examination of witness Richmond Powell, the defendant elicited from him a part of a conversation with one Haynes. On rebuttal, ‍‌​​‌​‌‌​‌​​​​​​‌‌‌​‌‌​​​‌​‌‌​‌​‌‌‌‌​​​​‌‌‌‌‌‌​‌​‍it was'entirely competent for thе State to show the entire conversation between witness and Haynes. — 1 Mayfield’s Dig., 329, § 337.

The statement of witness Goldsmith that defendant declined to consent to his taking away the shoes which he (defendant) was wearing for the purpose of comparison with certain tracks supposed to have been made by defendant should havе been .excluded. This testimony was clearly illegal upon the principle that the accused cannot be compelled to do or say anything that may tend tо eliminate him and his refusal to do so cannot be proved as a circumstance against him. Cooper v. The State, 86 Ala. 610; Potter v. The State, 92 Ala. 37; Chastang v. The State, 83 Ala. 29. Care should, however, be taken not to apply this principle sо as to exclude the application of the well established doctrine, where a statement is made in the presence of a party accusing him of thе commission of or complicity in a crime, his silence or failure to meet the accusation with a prompt and explicit denial may, under circumstances warrant the inference of his acquiescence in the truth of the charge. The principle first above declared is founded upon the protection guaranteed to him by the constitution that “he shall not be compelled to give evidence against himself” (Art. 1, § 7 of 'Const.) ; and to conserve the spirit and purpose of the guarantee the accused cannot directly or indirectly be compelled to do an affirmative act or to affirmatively say anything which may tend to criminate him. On the other hand, where a statement is made to him, or to another in his presence, affecting his guilt or innocence, his omission to controvert, qualify or exрlain it, will afford an inference of its truth, if so circumstanced that he can make the denial. This doctrine is founded upon a confession or an admission implied from сonduct. To state the foundation for it more fully, it is, that a person knowing the truth or falsity of a statement af*17fecting Ms rights, will naturally under circumstances calling for a reply ‍‌​​‌​‌‌​‌​​​​​​‌‌‌​‌‌​​​‌​‌‌​‌​‌‌‌‌​​​​‌‌‌‌‌‌​‌​‍dеny it, if he is at liberty to do so and if he does not intend to admit it. — Avery v. The State, 124 Ala. 20; Lawson & Swinney v. The State, 20 Ala. 65; Huggins v. The State, 41 Ala. 393; Jackson v. The State, 54 Ala. 234; 6 Am. & Eng. Ency. Law (2d ed.), 524-5. Under this latter -doctrine the accused neither does an act nor says anything tending to criminate himsеlf by his denial, explanation or qualification. It is only his omission to exculpate himself, if he -can do so by speaking, that warrants the inference that the statement inаde incriminating him is true. Applying this principle to the ruling of the court in denying the motion to exclude the statement of witness Goldsmith as to the conversation had with Washington and Jоrdan in the immediate presence of defendant, it is clear that there was no error. The defendant was shown to have been near enough to hear the conversation and it was not rendered inadmissible because the witness could not state positively that he did hear it. Whether he heard it or not was a question for the jury.

Charge 2 requested by defendant was bad. — Littleton v. The State, 128 Ala. 31.

■Chаrge 3 refused to defendant -should have been given, had it contained the word “have” after the word “jury” and before the word “not.” — Carroll v. The State, 130 Ala. 99.

The foregoing -are the only errors insisted upon in argument of defendant’s counsel. We have, however, examined the other exceptions taken in the course of the trial and find no error in the rulings of the court upon them.

Reversed and remanded.