Johnson v. State, 47 Ala. 9

Johnson v. State

47 Ala. 9 | Ala. | 1872

PEOK, C. J.

The appellant was indicted at the February term of the city court of Montgomery county, 1871, for the murder of Henry Walton, by shooting him with a gun. At the October term of the same year he was tried and convicted of murder in the first degree, and sentenced to be hung on Friday, the 8th day of March, 1872. From said sentence he has appealed to this court. The ease has been elaborately argued, presenting many questions for consideration. An examination of the record, in connection with the arguments, has convinced us that the conviction and sentence must be reversed.

In disposing of the case, we shall confine our opinion to the questions in which, we think, errors are to be found, and to such other questions as will probably arise on another trial.

In capital cases, and other felonies, there are some matters that must affirmatively appear in the record, or the conviction will be erroneous, and the judgment of the court must be reversed.

In sugIi cases, where the defendant is in actual imprisonment, it must affirmatively appear that a copy of the indictment and a list of the jurors summoned for his trial, including the regular jury, were delivered to him at least one entire day before the day appointed for his trial. — Revised Code, § 4171; Robertson v. The State, 43 Ala. 325. And in all felonies the record must show that the defendant was asked, before sentence, if he has anything to say, why judgment should not be pronounced upon him. — Crim *31v. The State, 43 Ala. 53; 1 Bish. Crim. Pro. § 865. And we bold it equally necessary to a legal conviction, that the record should show that the jury was sworn, and that the oath administered conforms substantially to the oath required to be administered by the Bevised Code, § 4092. That oath requires the jurors to be sworn, not only well and truly to try the issue joined between the State of Alabama and the defendant, but also a true verdict to render according to the evidence. The record in this case states, the jury “were drdy sworn to well and truly try the issue joined between the State of Alabama and the defendant, Joe Johnson.” If it were stated that the jury were duly sworn according to law, it might, perhaps, be presumed they were sworn in the form required by the statute, but as the oath administered is stated, we can not presume that they were otherwise sworn. The oath stated leaves out an essential and substantive part of the oath required to be administered, to-wit: “ and a true verdict render according to the evidence: so help you God.” Thus, we see, not only an essential, but the most impressive part of the oath, was omitted; that part that directs the jurors to look to God for help, in the discharge of their important and solemn duty, a duty in which the life of a human being was involved. This omission must necessarily render the verdict illegal, and insufficient to justify the fearful and terrible punishment to which the defendant is consigned by the sentence and judgment of the court. — Harreman v. The State, 2 Greene’s Iowa Rep. 270-283; Bivens v. The State, 6 Eng. Rep. 455-465; Jones v. The State, 5 Ala. 666, 673.

2. Were the declarations offered by the State, as the dying declarations of the deceased, admissible?

Dying declarations are only admissible where the deceased knows or thinks he is in a dying state. Positive evidence of this knowledge is not required; it may be inferred from the conduct and condition of the deceased. Roscoe’s Crim. Ev. 29.

It is a general rule, that dying declarations, though made with a full consciousness of approaching death, are only admissible where the death of the deceased is the subject *32of the charge, and the circumstances of the death are the subject of the dying declarations. — Roseoe’s Crim. Ev. 28. The dying declarations offered in evidence in this case fall strictly within this rule. The death of the deceased was the subject of the charge, and they were offered to prove the circumstances of the death of the deceased, and the party by whom it was occasioned.

A careful examination of the evidence satisfies us that the deceased not only believed that he was in a dying state, but that he was so in fact. He lived only about three or four horns after he was shot, said he was bound to die; and the physician who visited him directly after the shooting said he was then in a dying condition, was collapsed, had but little pulse, was sinking, and soon after became speechless; that after a little while he became able to speak so as to be understood. Another witness named Merriwether stated that about fifteen or twenty minutes before deceased died he said, to a question asked him by the physician, “Joe sent for me, and I went down. When I got close to him, he told me not to come closer; if I did, he would shoot me. I wheeled to walk away, and he shot me.”

Other witnesses were examined on this subject, and proved similar declarations. These examinations were to the court, for the purpose of determining the admissibility of the dying declarations of the deceased, but in the presence and hearing of the jury, the court telling the jury the evidence was for the court, and not for the jury. The defendant’s counsel objected to said evidence, and to the admissibility of the dying declarations of the deceased, and moved the court to exclude the same. This the court refused to do then, but said, when the evidence is closed, and before the arguments of the counsel to the jury commence, the motion of defendant to exclude the dying declarations of deceased would be decided. To these several rulings of the court the defendant excepted. The evidence of the State being closed, the court directed the defendant to proceed with the case. The defendant objected to proceeding further, or to enter upon the examination of his witnesses, until bis motion to exclude tlie evidence of tbe dymg *33■declarations of deceased was decided by the court, as lie could not know what to meet, or whether said dying declarations would be evidence or not. The court overruled defendant’s objection, and directed him to proceed with the case, and defendant excepted. Thereupon, the defendant proceeded and examined his witnesses. After the defendant had closed his evidence, and after argument of counsel on the several motions of defendant as aforesaid, to exclude the dying declarations of deceased, the court excluded all evidence of the dying declarations of the deceased, except those made by deceased when he was lying on the ground, immediately after he was shot, and the evidence of the physician, and of a witness by the name of Merriwether; and to this ruling of the court the defendant excepted.

The court committed no error in deciding that the dying declarations of deceased, referred to, were admissible, but we think the court erred in requiring the defendant to proceed with his defense before deciding that question. This is certainly a novel question. No authority is referred to sustaining the decision of the court, and, so far as we know, none exists. Novelties in the law are to be regarded with distrust. No accused person should be required to make his defense until he is informed what the evidence against him is. Common justice requires this, and common justice is common law. Such a practice reverses all the well settled rules of criminal procedure on this subject, and must therefore be erroneous.

3. In a criminal case the wife is sometimes a competent witness against the husband, but never for him. — 1 Greenl. Ev. § 343, and the two following sections; Williams v. The State, 44 Ala. 24; Revised Code, § 2704.

4. The court committed no error in refusing te quash the venire, because of the mistake in the Christian name of one of the jurors in the list of jurors required to be delivered to the defendant by section 4171 of the Revised Code. The remedy for such a mistake is provided for in section 4175, and the record shows the defendant had the benefit of that remedy.

*345. Where jurors, whose names are in the list of jurors delivered to the defendant for his trial, if drawn, fail to answer when called, it is no error in the court to refuse to send for them, although it be shown that they live, and are in the city at the time they are called; but when a juror is in the jail, under an qrder or sentence of the court, in such a ease, on. the motion of the defendant, if the court refuses to send for him and have him brought into court, it is an error for which the judgment will be reversed. — Boggs v. The State, 45 Ala. 30.

For the errors named, the judgment is reversed, and the cause is remanded for another trial, and the defendant will remain in custody until discharged by due course of law.