109 Ala. 11 | Ala. | 1895
Section 4316 of the Code provides, that if for any cause, no petit jury is summoned for any week of the term of the court, the court may, by an order entered on the minutes, direct the sheriff forthwith to summon the requisite number to servo as petit jurors, etc. Section 4306 provides for the drawing of petit jurors by the officers appointed for the purpose, for each regular term of the court, “allowing thirty persons for each week of the term prescribed by law.” Reference is manifestly made in said section 4316, touching “the requisite number to serve as petit jurors,” to the provisions of said section 4306. Under the new jury law (Acts 1886-7, p. 151, Code p. 131), section 4, the jury commissioners are required to draw the petit juries for each week of the term, “allowing not more than 36, nor less than 30 persons for each week of the term prescribed by law.” It seems that the term of the Circuit Court of said county of Cleburne had been extended by law to three weeks, since the last session of the jury commissioners of said county, the length of the term being two weeks at that time ; and no jury having been drawn for the third week, the court, by an order spread on the minutes, directed the sheriff of the county to summon forthwith twenty-four persons to serve as petit jurors during said third week of the term of said court.
We find in the jury law, prior to said act of 1887, no directions, in terms given, that the judge shall organize more than two juries of twelve men each, for each week. It is provided in section 4326 of the Code that two juries are to be organized out of those drawn and summoned, the first twelve sworn to constitute jury number one, the next twelve, the second jury, and if any more are in attendance, they may be placed on a third jury. In the law of 1887,§ 9, it is directed, that out of the persons summoned as a petit jurors, and attending, the court shall organize two petit juries, of twelve men each, and if any are over, they shall be held, unless, in the opinion of the court, they may be excused for the term. So that, under this law, when not more than thirty-six nor less than thirty persons to serve as jurors are directed to be drawn for each week of the term (section 4), the court is not required to organize more than two full
The witness, Brooks, for the State, swore to the general character of defendant, that it was good, that he had heard that defendant had shot aman in (ieorgia, and he afterwards heard the report contradicted. The latter part of this statement was admissible as affecting the credibility of the witness. The solicitor was allowed on the re-direct examination, against a proper objection of defendant, to ask the witness: “Do you know the rumor was false?” and he answered, he did not, except from rumor. In this there was error. A witness to character, as we have repeatedly said, cannot speak of particular acts, and his knowledge of - them, or even the .course of conduct of the person inquired about, but is confined to a statement of general reputation in the neighborhood in which he lives. — Moulton v. The State, 88 Ala. 118; Thompson v. The State, 100 Ala. 70; McQueen v. The State, in MSS; Lowery v. The State, 98 Ala. 49.
The witness, Williamson, was shown to 'have staid all night at Alice Palmer’s house, at which the deceased
The witness, in addition to stating that he had spent the whole of the night at Alice Palmer’s house that night, stated that certain officers of the law came there, about 12 o’clock, and asked for admittance, and when they made known who they were, were admitted, and they arrested the witness. Defendant’s counsel asked the witness, where he was when the officers came? The court, on the objection of the solicitor, refused to let him answer the question. In this there was no error. The witness had just answered he was at the house when the officers came, and they arrested him when they entered, and that he had spent the whole night there. The court had the discretion to disallow unnecessary questions, calling for answers already explicitly made. The only object of the question, so far as is seen, was to require a repetition of an answer already made as positively as it could be done. There was no disclosure of any other purpose in propounding the question.
The evidence of the witness Napper, — allowed against defendant’s objection, — that he had shot a pistol hole through a dry plank one time, as an experiment to ascertain the size of the hole made, as compared with the size of the ball which made it, as applicable to this case, — is not distinguishable from like experiments denounced as improper and inadmissible in the case of Tensey v. The State, 77 Ala. 33, and in the more recent case of Miller v. The State, in MSS.
The witness, Owen, for the State, had testified to a conversation had between Crawford, a co-defendant, in the presence of said witness and of the defendant, in-the evening of the killing of the deceased, and a short time before, in which Crawford asked witness if he could make a fellow “break over,”, or “tear out,” or “something like that, ’ ’ and that Crawford asked witness to go with him over to the widow’s, referring, as was alleged, to Alice Palmer’s, where deceased was, for the • time, staying. When Crawford came to be examined for the
There was no error in admitting the receipt given by Crawford to Alice Palmer. Crawford had testified, he went the night of the killing, with defendant, to Alice Palmer’s house, to see her about a mortgage her husband had given one Howie, on a cow and calf, which he, Crawford, had taken up, but that he had allowed Alice to keep the cow and calf. He further testified, that theretofore, being unable to read and write, he had asked; one Robertson to write a receipt to Alice for fifteen dol- • lars against the mortgage, which was done, and he gave it to Alice. Alice testified that Crawford had given her a receipt in full against the mortgage, and the receipt being produced, she swore it was the one given her by Crawford. The receipt showed it was for $15, paid by, Alice in full of the Howie mortgage. Crawford had sworn that he did not know whether it was the one he gave Alice or not. There was no error in allowing it to be read. It was sufficiently proved, and tended to show that the pretense of Crawford, in going to her house the night of the killing to see about the cow, was false.
The second charge asked by defendant and refused need not be considered. It had reference alone to murder. The defendant was convicted of voluntary manslaughter, which was an acquittal of murder, for which he cannot again be put on trial.
The twenty-fifth charge was properly refused. It fails to hypothesize, that the defendants were “at the time so menaced, or appeared to be so meanced, as to create a reasonable apprehension of the loss of life, or that (they)
The twenty-seventh charge was an improper request. In the case of conspirators, to render each responsible for the acts of the others, it is not necessary, in carrying it out, if a party be killed, — the fact as hypothesized in this charge, — that if one of the party did not instigate, aid or abet in any way, to do any unlawful act, in the prosecution of which the death of the party slain was not reasonably within the contemplation of the' parties, does not excuse a conspirator from criminal responsibility. Defendant might be guilty, if the party went to the Palmer house for any illegal purpose, although he neither took part in the killing, nor assented to any arrangement beforehand having for its object the death of .Palmer. If several conspire to do an unlawful act, and 1 death happens, in the prosecution of the common object, 'they are all alike guilt3T of the homicide. Each is responsible for everything done, which follows incidentally in the execution of the common purpose] as one of its probable and natural consequences, even though if was not intended, or within the reasonable contemplation of the parties, as a part of the original design. Williams v. The State, 81 Ala. 1; Gibson v. The State, 89 Ala. 122; Martin v. The State, 89 Ala. 115; Tanner v. The State, 92 Ala. 1; Jolly v. The State, 94 Ala. 19.
The thirtieth charge was a proper one, and should have been given.
The thirty-fifth charge requested was improper. It hypothesizes a conspiracy to go to a private house, without any legal excuse therefor, to take a party out of it, in the execution of which, Palmer, who was residing for the time with the family in the house, was killed, and concludes with the request, that if his killing was not. incidental to their purpose in going there, nor probably in contemplation of the parties in going, and deceased was killed by Crawford of his own malice, and not by defend
Charge 36 was also improper. It was not necessary for defendant to have entertained the intent to kill Palmer or do him bodily harm, to render him guilty under the indictment. If he and others went to the house with no such intent, but for' an unlawful purpose, and the killing was incidental to such purpose, as one of its probable and natural consequences, he might still be guilty.
Charge 39 was properly refused. It excluded by its terms the guilt of defendant for manslaughter, included in the indictment, and confines the jury to an acquittal altogether, if they do not find defendant guilty of murder in the second degree ; and it was also bad for the same reasons that the one numbered.36 was.
It is a sufficient condemnation of charge 45 that it confined the jury to an investigation simply of a conspiracy, and instructs them to acquit, if defendant did not aid Crawford in the killing. There was some evidence, given by Mrs: Boman especially, tending to show that defendant may have fired the shot that killed Palmer. It contains, also, the infirmity of charges 36 and 39.
The same objections to charge 39 are applicable to the one numbered 47. Besides, it refers to the jury the determination of what was a departure from the- common design.
Charge 48 limits the common design, in furtherance of which the killing took place, to a purpose which included the homicide, if necessary in carrying it out, whereas, the parties may have had an unlawful purpose in visiting the house, short of a purpose to kill any one, and yet, if in executing such unlawful purpose, the killing occurred as incidental to it, and as a probable and natural consequence of it, the parties might be guilty.
Charges 31 and 54, for the best of reasons, perhaps, are not insisted on.
For the errors pointed out, the judgment and sentence of the court below are reversed, and the cause remanded .
The verdict of the jury was, “We the ju
Reversed and remanded.