50 So. 215 | Ala. | 1909
The indictment was returned by a grand jury specially drawn and organized by the court or judge as provided by section 3249 of the Code of 1907.
Sections 7261 and 3249 of the Code of 1907 are not in conflict, as there is a field of operation for both. Section 7261 provides for the drawing of juries for adjourned or special terms, by the jury commission, upon the order of the clerk, when the judge orders same prior to the convening of said special or adjourned terms. Section 3249 provides for the drawing of juries by the judge or court during the special or adjourned term when the order for same is not made until said special or adjourned term and not prior thereto. The judge in ordering the adjourned term, in the present instance, made no order at the time for a grand jury and did not order same until after said adjourned term had convened and properly drew the grand jury in question under section 3249 of the Code. Section 3249 provides that all juries shall be organized, sworn, and impaneled as at regular terms, and the trial court properly completed the grand jury under the terms of section 728?> of the Code of 1907. Moreover, section 7572 provides that no
The trial court committed no reversible error in the ruling upon the motion and pleas questioning the validity of the indictment.
The state had the right to show a former difficulty between the defendant and the deceased, for the purpose of showing malice; but the fact that the decedent’s face was swollen and bruised about three weeks before the killing had a tendency to enter into the details of the difficulty and should not have been admitted. — McAnally v. State, 74 Ala. 9.
The conversation between the deceased and Annie Liggan before the killing, and while the defendant was absent from the house, was not admissible. Neither should the trial court have permitted Mrs. Taylor to testify that deceased told her, about five minutes before the diffculty, and before the defendant had returned to the house, that “Holland told him he was going after a gun and was coming back to kill him, and that he could not defend himself.”
This was all hearsay evidence and was not a part of the res gestae. — State v. Stallings, 142 Ala. 115, 38 South. 261; Fonville v. State, 91 Ala. 39, 8 South. 688. The trial court likewise erred in permitting Mrs. Taylor to testify that deceased said, “Holland did not want him on account of the warrant, but for some other reason.” The state had the right to show what the defendant did and said uptown, just before the killing, and the threats that he may have made; but the defendant was entitled to the full conversation. The trial court did not err in permitting proof of what defendant said, after the killing, in Towles’ shop and in McEntire’s store, as to the difficulty and killing. It is true it was not a part of the res gestae, but was an inculpatory confession, and a
The trial court should not have permitted the state to show that defendant struck Abercrombie after he had gotten into the store. It did not appear that he struck him in an effort to escape. Of course, if he struck in an effort to escape, it would have been relevant; but we do not think it was shown, by the evidence, that this was done in an effort to escape.
The defendant should have been permitted to ask the witness Alonzo Webb if defendant asked deceased to go anywhere with him. The defendant’s theory was that he went there to arrest deceased, and the state’s was that he went to kill him whether or no, and the defendant should have been permitted to show that he was trying to arrest deceased and had requested him to go with him. Indeed, this was an eyewitness, and' the defendant was entitled to elicit from him everything that was said and done from the time they got there until the killing*. Of course, he could not state conclusions, and the trial court did not err in sustaining objections to questions of this character; but there were some direct questions asked which the court should have permitted.
The rulings upon the evidence have been considered, and we do not think the court committed reversible error except as heretofore pointed out.
The state’s theory is that, notwithstanding this defendant was armed with a warrant for the arrest of the deceased, he willfully and maliciously killed him, in that, he was using the warrant as a mere cloak to commit the crime, and that said killing was not necessary
While an officer having a warrant of arrest is justifiable in killing one charged with a felony, if he resist or flees, this rule does not prevail as to arrest of persons charg'ed with misdemeanors. “When an attempted arrest is for an ordinary misdemeanor or in a civil action, life can only be taken by the officer where the person arrested resists by force, and so endangers the life or person of the officer as to make such killing necessary in self-defense.” — Kerr on Homicide, 187; Birt v. State, 156 Ala. 29, 46 South. 858; Clements v. State, 50 Ala. 117. If the circumstances show a willful murder, rather than an attempt to arrest the deceased, the warrant can be of no benefit to the defendant. — 21 Cyc. 953, and authorities cited in note 39. On the other hand, if the defendant is armed with a legal warrant, he has the lawful right to enter the premises of the deceased, is under no duty to retreat in case of resistance, and can repel any force used by the deceased not in excess of what may be necessary to make the arrest or to protect his life or himself from serious bodily harm.
All the charges given at the request of the state, with, perhaps, the exception of No. 7, were warranted by the law and the facts hypothesized. Charge 7 may be correct in the abstract; but it may have misleading tendencies, and should not- be given on the next trial.
Charges 1 and 28, refused the defendant, should have been given.
The judgment of the circuit court is reversed, and the cause remanded.
Reversed and remanded.
