Hardwick v. State
164 So. 107
Ala. Ct. App.
1935
Check Treatment

*1 house, de that when the law own It is the which is his castle. Carter v. jury separated State, supra; State, supra. shown that Lee has fendant upon trial, burden is cast pending In the case at bar there was time never a (cid:127) affirmatively in- show that no the state when retreating the defendant could question primarily This is jury resulted. prevented not have homicide, this parties all the judge, trial who .for the charge gave court’s to the defendant the position better in a and is him advantage of a defense to which he was Every presumption this judge than court. not entitled. finding, es indulged of his in favor will be Other are examined and found testimony is part of the pecially where a to be without merit. taken tenus. ore is no reversible error in rec- was appears If it the defendant that ord, the judgment is affirmed. jury, separation of the injured Affirmed. the trial will not reverse this court on that grant new trial for failure State, ante, p. ground. Melton v. State, Payne So. Cobb v. 225. this case one Since the trial insane, jurors has become and defend 164 So. 107 juror ant was so insane insists such HARDWICK et al. STATE. testi at the of trial. The court took 6 Div. 735. mony this on found that at Appeals juror trial was sane. Court We will not Alabama. finding. disturb this 28, 1935. Another insistence of defendant is Rehearing Aug. Denied jurors that one of the rode to town on morning the trial with a kinsman of transpired man. dead It that one New puncture ton and Earnest had a P'ulks Springer, that Earl selected as one of cáse, afterwards jurors try car, picked up, came in his them brought town, them on to place took between them to conversation ques against the Williams’. the case These fully carefully investigated tions were court, we see no reason finding. his to disturb court charge was entire ly too favorable to the defendant. In charging self-defense the charged jury that the duty defendant was under no retreat because evidence with showed that at conflict the time of the shooting defendants were on their own land, then added: “The law does not require a defendant to retreat if he is on premises.” been, That his own never has now, expresses and this court be, hope only never will the law. The time a man is not to retreat rather than take human life when he i$ wall,” ditch,” has “backed or “to the he is within curtilage when of his *2 Carmichael, A. A. Atty. Gen., L. James

Screws, *3 Atty. Gen., Asst. George Ross, of Bessemer, for the State. Busby, Carlton, Proctor & Walter S. Smith, Smith, Jr., Walter S. all of Birmingham, appellants. 8, 1935, February ing the cases on within ninety days judgments entered. provides Section 6433 of the Code that: may presented exceptions “Bills of be ninety any clerk at within days day judgment from the ** * entered, is afterwards. and not presented bill When the n clerk, duty shall be his forthwith judge.” deliver or forward it proper some confusion as presentation exception under of a bill of SAMFORD, Judge. *4 statutes, former under the statute as but hill of ex- to the is made strike Motion proper now is is either presentation ceptions grounds, follows: ten as on judge clerk of court. to the or the the Exceptions was Bill of Because said “1. clerk, presented in- When he must to the approving the Judge the presented not dorse thereon the true presentation, date of by law. required time the same within thereupon and it duty becomes the of the nothing appearing there is “2. Because clerk to forthwith deliver or forward it to filing of this Bill show that a record to (cid:127)of judge. the Jordan, Arnold & Co. v. 215 Exceptions with the Clerk was author-

-of 693, 112 So. 305. law. under the ized The action to be taken under sec fact that the Notwithstanding the “3. Code, tion 6436 of the tak must be county, was out the there judge of pari en in 6433, materia with pre section is at the nothing filed with the clerk was. liminary predicate to and as a appli to an presented himto that was time the same cation having the bill established before of judge was or out the the trial sick judge appellate of the court. tried or for the cause was county where The disposes foregoing grounds 1, 2, of .any other cause. 3, and 4 of the State's motion. a show- of in the absence “4. Because (1) of the in 6438 ing forth section as set While exceptions the bill of n Code of not was author- the Clerk 1928 prepared compliance in strict with the re Exceptions filed. Bill of mark said ized quirements 6438, of section 1, subd. of the 1923, of Code the violation is not so fla Exceptions is Bill of said Because “5. grant to require as inus this case en of the by any Judge lawful approved not force penalty authorized by Circuit, in which section Circuit 10th Judicial 6438, 5, Code, supra. subd. tried. the case was exceptions The bill of signed, was knows with- judicially the Court Because “6. law, by in the time allowed H. P. Hef- one of Cir- not was P. Heflin that H. lin, judge presided at the trial of Circuit Judges of the 10th cuit Judicial case, term whose of office had ex- signed Exceptions was Bill of the date said pired signed before he the same. The approved. being him as point is now made that H. P. Heflin had Bill signing of said of Because “7. authority no the bill sign exceptions of comply with section Exceptions does expiration after the of the term of office Code of 1928. (4) 6438 of the Legislature and that the act of the of Legislature of the the Act Because “8. 1927, (Gen. pp. 1927 Acts 213 214), attempting 214 pages 213 and of incorporated and now in Michie’s Code of resigned power that grant Ala. Laws 1928 as sections (1), removed expired or of office or his term (3), (2), (4) (5), and void. unconstitutional office is from being void as in of violation the Constitu- legal has been there Because “9. of 1901. tion Exceptions. of of Bill presentation undoubtedly cited act above Exceptions is Bill of Because “10. right gives Judge Heflin and makes than nar- answer rather in duty sign settle and of ex it his bills him,, section violation of in rative form ceptions in tried before 1923, and Circuit Court Rule 32.” 'Code of expiration office, pro his term of of prepared presente i exceptions prepared bills of was vided The bill try- law. with the clerk of the court and filed charged, simply as charge and under the of the Attorney General convicting verdicts were rendered act and brief motion serts in his attempts defendants of ments under the indict- the Constitu question is violation major This crime. charging the of the specific section but no tion of permissible was with section pur7 accord invoked. is cited or Constitution present Code 1923. is to pose of a bill clear true court a appellate When the witness Looney be dur questions presented statement of ing examined state, he testified to we know ing the trial and fixed the explosion in the Constitution no inhibition Grocery store of Hill Company at or pro Legislature prevent would about During 1st. the examination presided at judge who viding that of this developed witness it certify to the correctness trial should the of the bill of were two bombs thrown into the store stated, that’s all questions Grocery the Hill Company, one of which exceptions is. The motion to strike exploded doing damage and one where the is overruled. fuse lighted had been and gave out. Looney first testified to the bomb which were four defendants and exploded, and there was a misunderstand by agreement sixteen indictments open ing lawyers between the for the state and *5 the entire sixteen cases were defendants and the court as to what the jurors jointly. There were 58 tried to be really witness had Thereupon testified to. impaneled the for criminal summoned and on motion of the state the court ruled: “I court, but when these cas division of the es were called you, tell gentlemen will of jury, the not to jury for trial and the any consider other testimony of this wit jurors engaged to be were selected ness, Looney; Mr. just Matt wipe it out the trial of a misdemeanor case and 12 jurors your of minds and not anything consider another engaged been transferred to di had he has said up about this case to this time. court and were vision of the They proceed will now to examine him case, quasi thereby a the trial of criminal anew. you And will not consider re the panel to 34. The reducing the defend counsel, of marks the other any the Solicitor or ju ants furnished a list were of these 34 lawyers in this wipe case. Just required rors and to strike in accordance testimony his anew, let and them start with section of the Code of 1923. governed and be evidence, his the other panel which from were defendants re evidence in the his he evidence that quired having not to strike been reduced gives on, just now and not consider by law, required below the number there the other already evidence he has given.” was no ruling error the of the court This was what the court should done have overruling objection defendants’ to being in order prevent any to confusion in panel strike from to a of 34 minds of jury. It was not a jurors. possible injury No to defendants of allowing a witness to change testi his ruling could arise from such a in the ab mony stand, on the allowing but of sence or prejudice of fraud undue on the testify witness to relating another act part jurors, claimed, not indictment in the pending case. any but in tled a event defendant is not enti juror engaged to draw who is predicate for a confession State, State, the trial of another Prater v. case. the defendants prop Oswell and Tate was 238; Dorsey 107 Ala. 18 So. erly laid as having pres in the State," 157, 18 So. Conn ence parties of several including a court App. 19 State, Mullins Ala. 96 So. reporter, qualified as expert an and App. who took down in shorthand and tran scribed transcript the confessions. The charge the defend The indictments having after been identified and testified willfully off having ants with set or ex to jury. testimony, to its correctness was read to ploded dynamite explosive in or other or objections went to the whole Grocery Compa under Hill store part being of it relevant Inc., ny, property corporation, which with the legal, general objections were contained ofwas therein val properly overruled. ue of more. or In some of the $500 failed evidence reading establish a After the com of the confes pleted as charged, proceeded crime but did sions had time, tend some prove attempt an objected to commit the defendant particular crime part were inadmis- made render such evidence oth- relating to some read and being then sible. As a matter of fact in this case sustained. objection was er crime. This made, clearly the statements were heard jury tell “I will The court then said: they understood the defendants con- anything that not to consider stores, opportunity deny given were each bombing of nected with the they they if been them if had not been true and have alleged to stores that earthly no not had' not been true there was will You bombed, indictment. reason for defendants’ silence. Sim- have any in there other stuff let of that mons v. prejudice any you at all weight with way 466. general in a you might all. You at objection, you here sat have made that The bill of does not them read all stuff about let purport to set out all of the evidence in residences, any without ob- bombing the the case. In the absence of such a state trying repair jection; now I am presumes ment this court there was you, any if there wrong has been done - sufficient evidence to sustain the verdicts any. I think is a sensible has been rulings and the of the court on refused telling them not to consid- jury, and I am charges. 2 Alabama Digest, & Southern against you er that them at all. If strike Appeal Error, @::>696(1)and (2). you on, my anything want me to rule call Relative to the statements and confes- you get it attention Tate, sions defendants Oswell jury jury. All I can do now is tell the is a vast amount of irrelevant matter in not to consider it.” The court further transcript. Page page after of argu- again you again stated: “I want to tell ment of counsel colloquies with the anything to consider that has been place court which has in the bill of -ex- you read to that doesn’t refer to the Hill ceptions and when it comes to the state- bombing.” then And the court Store ments Oswell and Tate page there is *6 further instruction limited the confessions page questions after just and answers by and Tate them. made Oswell they were taken the stenographer, rulings In of the court these various all of which is in violation of Circuit they error, but there is no reversible subjects Court appellants Rule part of the evince care on the penalties rule, certain named in the were these defendants .to see that which, reasons, for certain we have not fairly according law. tried applied. this court But will not search through this mass of matter in order to tending to was evidence verify objections way made in general hearing of presence and show that in the parts testimony appearing in the Williams, defendants Hardwick and Os objections statements. Such were not implicating both wald made a statement pointed specifically in the court be- in Hardwick and Williams all of low, they specifically point- nor have been and a charged crimes in these indictments ed say, out here. it to if there was Suffice detailed statement was made as illegal appearing in and irrelevant matter part in taken Hardwick and Williams they the statements admitted were not of charged. the commission of each crime injuriously such a nature as to affect de- They given opportunity were each rights. fendants’ deny the accusation each refused naturally bill of fails to state that say anything. accusation This evidence, it contains all of the and there- reply, in others called for a addition presume any fore we are authorized to if the state present defendants asked these necessary state of facts to sustain the rul- they mute. The stood ment was true ings any question of the court on involv- to be considered evidence was admissible insufficiency ing an of the evidence. How- in the along the other evidence with ever, impelled say we feel guilt determining or innocence in State, evidence in 23 Ala. is abundant set out the bill of v. defendants. these Jones State, exceptions, appears, support every 97; as it 546, Vaughn App. . 129 So. ques- court on 604, ruling such App. 139 So. Cabaniss Tuscaloosa, App. 507, 109 tions. City 21 Ala. State, App. Tate find no error in the rec- We reversible 461. ord, judgments separate- are and the each ly affirmed. Nor, fact that does the defendants custody Affirmed. at the time the accusations were Rehearing. On in now insists that Appellant vitally defec dictments haec fail to follow they in that tive section prescribed form verba the n ofthe Code of It will be observed 1923. ex form, supra, is not statutory apply part to that clusive and does which these defendants the statute under store, wit, with convicted, were property (cid:127)the therein contained was of value of more. This constitutes $500 complete under the statute and is offense properly charged indictment.

n construction of the statute contended (cid:127)by appellants ab would be “reductio ad Moreover, ground surdum.” there is no specifically point. raising of demurrer contention As to the now made alleged the indictment should have its crime so as to show the date of the

n commissionafter amended statute 204), p. Acts (Gen. March adversely to question is settled this exact n appellants Bryan v. 89 So. unnecessary dis- to further deem We n cuss appellants’ excel- questions argued in rehearing, as the same have lent brief original sufficiently passed on in the

n opinion. application overruled. See, also, ante, p. 278, 158 So. 331. *7 Opinion Application over- extended. ruled. Busby, Carlton, & Proctor Birming-

ham, appellant. TATE v. STATE. Div. 756. Appeals of Alabama. Court of 28, 1935. Aug. 27,

Rehearing Denied