Jackson v. State

74 Ala. 26 | Ala. | 1883

SOMEKVTLLE, J.

— The fact that one offered as a juror fills at the time the office of coroner furnishes no lawful ground for challenge under the laws of this State. The statute does not disqualify him from serving as a juror, but only declares that he shall be “ exempt from jury duty, unless by his own consent.” — Code, 1876, § 4734. This right of exemption is clearly a mere personal privilege, which may be claimed, or waived by him, at his option. — Spigener’s case, 62 Ala. 383. The City Court so ruled, and its action is free from all objection.

The ■ fact is sufficiently patent from the record, that the indictment found by the grand jury was one of the number returned by them-to the October term, 1883, of the City Court of Montgomery. This indictment is shown to have been indorsed “ a true bill,” -by the foreman of this body, and was also indorsed by the clerk of the court as “ presented in open court,” in presence of the other members of the grand jury, and “ filed ” on the 20th day of October, 1883. This indorsement was furthermore signed by the clerk. The requirements of the statute were thus literally complied with, beyond all question of doubt. — Code, § 4821; Wesley’s case, 52 Ala. 182.

The variance in the spelling of the foreman’s name was entirely immaterial. His true name, as shown by the record, appears to be J. A. Booth. As indorsed upon the indictment, it is spelled J. A. Boothe. The two names are strictly idem sonans, and must be construed to be legally the same. — Stedman's case, 7 Port. 496.

Moreover, objections of the foregoing character, going to the ge?iuineness of an indictment as a court record, can not be interposed in this court for the first time. They should be raised in the court below, before pleading to the merits of the case, by timely motion to quash, or to strike the paper from the files. This course is not shown to have been pursued. Sparrenberger's case, 53 Ala. 481; Clark’s case, 3 Ala. 378; Nixon’s case, 68 Ala. 535.

The court did not err, in our opinion, in holding the juror Noble to be incompetent to serve, under the provisions of the statute. Section 4888 of the present Code declares it to be a good canse of challenge by the State, in capital cases, that the person “has a fixed opinion against capital, or penitentiary punishment,"’ or “ thinks that a conviction should not be had on circumstantial evidence.” Noble declared, when examined on his vovr <Mre, that while he was not opposed to a conviction on circumstantial evidence, he was opposed to ham,ging, or punishing capitally, on such evidence. lie had, in-other words, a fixed opinion against capital punishment, as prescribed by the laws of this State, based on circumstantial evidence. This was sufficient to disqualify him under the statute, the policy of which is to place positive and circumstantial evidence upon the same basis of equality, so as to abolish all jmejudice or discrimination against them, as media or instrumentalities for arriving at the truth, in the. process of judicial investigation of capital felonies against the State.

It is insisted that the court below erred in refusing to give the several charges requested by the defendant, the purpose of which was to compel the jury to elect under which count of the indictment they would find a verdict of guilty. The first of these counts averred the killing to have been done by striking with a gun, and the second by cutting with a razor. It is our opinion that these charges, according to the sounder view, were properly refused. The purpose of joining the two counts, as shown by the evidence, is not to charge two separate and distinct offenses, but to vary the description of one and the same offense. The theory of the law, in permitting several counts in such cases,' is to meet every probable contingency of the evidence. Under such a state, of facts,-the State can not be compelled to elect under which particular count it will conduct the prosecution. Neither can. the jury any more be forced, by instructions of the court, to elect under which count .they will convict. They may well be satisfied, beyond a reasonable doubt, that the defendant is guilty as charged in the indictment, and yet may entertain serious doubts as to the mode of death, or the instrument by which’ the mortal wound was inflicted. It would result in a lamentable maladministra.tion of justice, if the principle should obtain, that the defendant should be acquitted of murder, or other homicide, because the jury entertained doubts as to the kind of instrument used in perpetrating the killing, although they might be sure it .was done with one of two instruments, and each mode of killing was properly described in the indictment. If the grand jury were not satisfied as to the mode of death, it was competent for them to charge the crime in several counts, or in the same count, so as to meet every possible contingency of the evidence on this point; and neither the State, in the first instance, nor the jury, in the progress of the trial, could be compelled to elect under which particular count a conviction should be had or procured. — 1 Whart. Cr. Law, §§ 421, 423-424; Whart. Hom. §§ 819, 857, 906; Com. v. Desmarteau, 16 Gray, 1.

It was said in The State v. Givens, 5 Ala. 747, that the jury should be instructed, at the request of the defendant, to express by their verdict on which count they render their verdict of guilty. The rule there declared is erroneous, when applied to cases like the present, where the several counts in the indictment are intended to vary the description of the same offense. It must be modified, so as to be limited to those cases only where the doctrine of election applies, or where the various counts of the indictment are intended to describe offenses which are separate and distinct. — 1 Bish. Cr. Prac. § 449, note (3).

We see no error in the charge given at the request of the State. Malice, either express or implied, is often said to be the very essence of murder, and ■ can not be an ingredient of manslaughter. There could, therefore, be no conviction of any less offense than murder, if the existence of malice, or, as more commonly designated “ malice aforethought,” was proved to the satisfaction of the jury, and beyond a reasonable doubt. Whart. on Hom. § 4; 4 Black. Com. 191; Clark’s Man. Cr. Law, §§ 412, 419; 2 Bish. Cr. Law, §§ 677, 672.

The fourth charge, requested by the defendant, was properly refused. The charge, in effect, instructs the jury, that upon the given state of facts, which admit the killing with a deadly weapon, they could not convict the defendant of a higher grade' of homicide than manslaughter, without any regard to the existence of malice. The charge is defective, in withdrawing from the jury all consideration of the question of malice, which itself determined the degree of the crime.

We find no error in the record, and the judgment is affirmed.