Garrett v. State, 97 Ala. 18

Garrett v. State

97 Ala. 18 | Ala. | 1892

HARALSON, J.

— The first exception to the ruling of the court on the trial of the defendant, was on a , motion to quash the indictment, on grounds alleged to have been set out in a motion therefor, on file in the cause, but which does not appear in the record.

The record shows, that the motion was .predicated on four grounds, the fourth of which was, on motion of the State, stricken from the files, and issue was joined on the remaining three, and trial was had.

The court found the issue against the defendant, and refused to quash the indictment. We are not informed by the bill of exceptions, what the evidence was, and, in the absence of evidence to sustain the motion, the ruling of the court will be presumed to be correct.

One of the grounds of the motion, as we gather from the bill of exceptions, was, that the witnesses before the grand jury, on whose testimony the indictment was found, were sworn by A. S. Stockton, who vvas before the grand jury, in the absence of the solicitor, as his deputy, without having been appointed by the court, to act in that capacity.

The State demurred, orally, to the motion to quash the indictment, which demurrer was overruled. In announcing its decision on the demurrer, the court stated, “That it was a fact that said Stockton was appointed at said term of the court, to act as solicitor pro tern, but that the court had examined the minutes, and found that the records of the court *25did- not show that said appointment had been made, and, therefore, if said Stockton did, in fact, swear the witnesses before the grand jury, on whose testimony the indictment was found, that the indictment should be quashed.” The defendant excepted to the “remark of the court, that said Stockton was in fact regularly appointed solicitor.” We are unable to see how this remark made, in communicating a ruling on the demurrer to said motion, was erroneous. Taken in connection with all the court said, it seems to be in line with what defendant was proposing, and favorable to him. This was not, however, on the trial of the issue on the motion to quash, and the ruling being on demurrer, and' shown only in the bill of exceptions, if erroneous, is not reversible. — Powell v. The State, 89 Ala. 172.

Another ground of that motion, as appears in the bill of exceptions was, that R. W. Manning was present when the witnesses were examined, and assisted in finding the indictment, when he was not a member of the grand jury. The bill shows, that the court overruled the motion on that account, and in the absence of the evidence on that point, we presume the correctness of the ruling of the court, especially, since we find the name of R. W. Manning among those empannelled as the grand jury.

The defendant sought to prove by a witness, who had been introduced and examined by the State, the general character of Sims, the deceased. This witness had not been examined by the State, touching the character of the deceased. Having answered that he knew his general character, for peace, and that it was .good, defendant then asked him, if he had ever heard about Sims running a man, named Moore, around his shop, with a hot horse-shoe. To this question the State objected, which was sustained, and defendant reserved an exception. The ruling was free from error. Good or bad character can be established, only, by proof of general reputation. Particular acts óf conduct are inadmissible, either on the direct or cross examination, with certain exceptions, within which this question did not fall. Moulton v. The State, 88 Ala. 116.

It was not proper for the defendant to ask his witness, Saunders, if the defendant was discharged on preliminary examination, on this charge. The question called for illegal and irrelevant evidence.

The State asked, and the court gave, four written charges, the three last of which were proper, since they each assert, and are based on the well established principle, that a party who is at fault in bringing on a difficulty, can not invoke *26the law of self-clefense, if lie slay bis adversary.' — Cotten v. The State, 91 Ala. 106.

The first charge given for the State, is not free from error, in that it assumes as a fact, that if' the wound, though not mortal, contributed to the death of deceased, the defendant is guilty in some degree for having killed deceased, whereas, that fact should have been submitted to the jury, under proper instructions.

The defendant asked thirty-one written charges. The 3rd, was properly refused, because it assumed as a fact, that the appearances and surroundings of defendant, were such as to produce in his mind, a reasonable belief, that he was about to lose his life, or suffer great bodily harm, and that he had no reasonable way of escape.

Nos. 16, 20, 21, 22, 23 and 24 were properly refused, because argumentative, and singled out particular facts on which to lay stress.

No. 25 is bad, because misleading. There is no evidence, of the size and character of the hammer in question, from which this court could say, it was or was not a deadly weapon. Nos. 27 and 28 misplace the burden of proof. No. 29, is the general charge, never proper-when there are conflicts in the evidence, and it invades the province of the jury. Nos. 30 and 31 are argumentative. They were evidently intended, chiefly, as replies, to remarks made by the solicitor to the jury. — Chatham v. The State, 92 Ala. 47; Potter v. The State, 92 Ala. 37; Brassell v. State, 91 Ala. 45; Brantley v. The State, 91 Ala. 47.

All the other charges, except the 26th, which we consider last, are faulty, in that they either ignoTe the duty of retreat, or the absence of fault, on the part of the defendant, in bringing on the difficulty, one or both, or are misleading.

As to the correctness of charge No. 26, there is some confusion in our decisions. It reads, “The court charges the jury, that they must find the defendant not guilty, unless the evidence excludes to a moral certainty, every supposition but that of his guilt.”

In Blackburn's case, 86 Ala. 595, the charge to the jury under review was, “That they should not find the defendant guilty, unless the evidence against him is sufficiently strong, to remove every supposition or hypothesis but that of his guilt,” and it was held to have been properly refused. Commenting upon it, the court said, “The third charge asserts, in effect, that every hypothesis of the defendant’s innocence, however unreasonable, or speculative, would authorize his acquittal, which is obviously erroneous.”

*27In Little v. The State, 89 Ala. 102, the charge was, “Unléss you are convinced beyond all reasonable (?) and to the exclusion of every other hypothesis, that defendant struck with an axe, your verdict should find the defendant not guilty.” The court said, “The confusion of this charge, resulting from the omission of the word doubt from its first clause, was a sufficient reason for its refusal. Another justification of the court’s action upon it, is found in the absence of any qualification of other hypotheses which must be excluded. It is not the law, that the evidence must exclude every other hypothesis, than that of defendant’s guilt, or than the existence of the facts essential to conviction. The rule goes no further than to the exclusion of other reasonable, not speculative, imaginary, possible hypotheses.”

We adopt our last utterance on this subject, quoted above, and what we said in Blackburn’s case supra, as being the sounder rule, and our other adjudications in conflict therewith, are modified to the extent of conforming them to this ruling. —(Mose v. The State, 36 Ala. 230; Joe v. The State, 38 Ala. 424; Cohen v. The State, 50 Ala. 112; McGee v. The State, 52 Ala. 226; Coleman v. The State, 59 Ala. 530; Riley v. The State, 88 Ala. 193.

Bor the single error in giving charge No. 1 for the State, the judgment and sentence of the court below must be reversed.

Reversed and remanded.