Hall v. State, 130 Ala. 45

Hall v. State

130 Ala. 45 | Ala. | 1900

McCLELLAN, C. J.

Defendant’s objections to the action of the -court in arraigning him during the first, a -civil, week of the term and then -setting his trial for a day of the second, another -civil week of the term, and proceeding to hi-s trial -on the day so fixed, Avere without merit and properly disregarded by the court.—Goley v. State, 87 Ala. 57; Code, §§ 913, 5003.

*54The practice of writing only the initials of the Christian names of jurors on slips and lists prepared by jury commissioners, and on venires and copies thereof served on defendants, etc., etc., has too long obtained and been treated by all courts as regular and sufficient to be now drawn in question; and defendant’s motions in this case to quash the venire, etc., etc., because the .given names of certain jurors were indicated only by initial letters on the venire and on the list served on him were well overruled.—Brown v. State, 128 Ala. 12.

The trial court ordered the drawing of thirty-five names of persons to be special jurors for the trial of this case, and, having drawn thirty-five names from the jury bos in the attempted and supposed execution of said order, further ordered “that the special jurors drawn in this case together with the jurors drawn and summoned for the second week of 'this court shall constitute the venire from which to select a jury for defendant’s trial,” etc., etc. One of the jurors drawn and summoned for the second week of the court, and who was in attendance as a regular juror for the week when defendant’s case came on for trial, was Cape Cannon; and by this name said Cannon was put upon the special venire as one .of the 'regular jurors drawn and summoned for the week. On one of the slips drawn by the presiding judge from the jury box, under the order for thirty-five special jurors was the name of O. B. Cannon, and this name was put on the venire of special jurors which the sheriff was ordered to summon for this trial. C. B. Cannon was summoned as one of said special jurors, and his name, O. B. Cannon, was put on the list served on the defendant among and as one of the thirty-five special jurors ordered for this case. So that on the list of the whole venire served on the defendant there was the name of Cape Cannon as one of the regular jury ■for the week and also the name of C. B. Cannon as one of the jurors specially drawn and summoned for this case. On the motion to quash the special venire (composed of both regular and special jurors) it was proved that the Cape Cannon on the regular jury and C. B. Cannon drawn and summoned as one of the thirt.v-five special jurors was one and the same man, so that in *55reality only thirty-four of the thirty-five special jurors ordered were drawn and summoned. Upon this state of the case, the court erred in overruling the motion to quash the venire.—Roberts v. State, 63 Ala. 515; Darby v. State, 92 Ala. 9.

This error was not cured by the subsequent action of the court in having this juror to stand aside when the name of O. B. Cannon was drawn from the hat, after the name Cape Cannon had been drawn and the juror had under the latter name been peremptorily challenged by the State. Nor would it have been cured had the court put the juror a second time on the State and the State had a second time challenged him peremptorily. • The defendant ivas entitled to have this» juror on the venire as one of the regular jurors for the week, and he Avas also entitled to another and different person on the venire as one of the thirty-five special jurors ordered for his trial. The other exceptions reserved in connection with the empanelling the jury on the trial beloAV are such as Avill probably not occur again; and Ave deem it unnecessary to pass upon them.

The several exceptions reserved to rulings upon the competency of testimony have been considered, and Ave find them to be without merit.

It AA'ill suffice to say of charge 1 refused to defendant that it gratuitously assumes that the only evidence tending to prove guilt was circumstantial.

Charges 2, 3 and 10 asked by defendant were bad for being argumentative.

Charge 4 refused to defendant had a tendency to mislead the jury to discard Gage’s testimony upon the mere consideration that he had been successfully contradicted as to a material fact when they might have concluded that he testified conscientiously as to that fact and was honestly mistaken as to it. Charge C having reference to this subject of Gage’s credibility was bad for assuming that his bad character had been proved. The law on this subject was fully and correctly expounded to the jury in charges numbered from 1 to 8, inclusive, given at defendant’s request.

Charge 5 assumes that defendant and O’Bannon were at Gage’s house by invitation. On the evidence the jury *56might 'have found to the contrary, since the invitation shown was for them to accompany Gage home earlier in the night, and this invitation had not been accepted. Moreover, a man has the same right to invite another away from as to his house; and the evidence for the State tended to show that some minutes before the shooting Gage requested both Hall and O’Bannon to leave, and that, upon their failing and refusing to do so, he had gone off to a neighbor’s to procure a pistol to coerce their departure. If the jury found the facts in line with this evidence, neither O’Bannon nor the defendant had any right to remain there at all, much less to stand their ground there and engage in •a personal difficulty with Gage on his return:- They should have retreated at once. Charge 6 also is bad for taking no account of this phase of the evidence; and for the further reason that it refers a question of law to the jury.—Miller v. State, 107 Ala. 40.

Charge 7 has a like infirmity: It pretermits, all inquiry as to the duty of defendant to have retreated while Gage was away in quest of a pistol. His remaining there during this interval was a wrong provocative of whatever trouble ensued upon Gage’s return, and was ■also a failure to avail himself .of an opportunity to retreat, if the evidence for the 'State is to be believed. And charge 8 pretermits all reference to the testimony of Gage as to his ordering Hall to leave, and to any quarrel that had occurred between Gage and Hall according to the testimony of the former. This charge 8 is also bad in declaring in effect that if 'Gage made for Hall, cursing him, and the latter then became suddenly angered he had a right to shoot Gage; or at least that he would have been excusable for shooting Gage under these circumstances. If the provocation hypothesized were sufficient to reduce the shooting to manslaughter — which it cannot be said as a matter of law to be — defendant would still have been guilty of that grade of offense which is “charged in the indictment.” Charge 9 also loses sight of the duty that, according to the evidence for the State, was upon Hall to retreat while Gage was seeking a pistol.

*57Oliarge F misconceives the measure of proof or degree of mental conviction necessary in criminal cases. The jury may be “in doubt” as to whether the defendant or some other person with whom he had no connection did the shooting, and yet they may have no reasonable doubt that defendant was the guilty agent.

There was no dispute about Hall’s hearing Gage order O’Bannon away: He so testified himself. 'Charge I was, therefore, bad for injecting this issue into the case.

Charge J takes from the jury all inquiry as to the practicability of Hall’s retreating after Gage returned from his quest for the pistol. Besides the question here is as to the right, of Hall to kill Mrs. Gage, if he did kill her, and not as to his right to “seize Gage or do any other reasonably necessary act to prevent Gage from inflicting an injury upon” him.

For the error committed by the court in overruling defendant’s motion to quash the venire, the judgment must be reversed. The cause is remanded.

Reversed and remanded.