Mathes v. State

57 So. 390 | Ala. Ct. App. | 1911

PELHAM, J.

Appellant was indicted for murder in the first degree, and convicted of murder in the second degree. The defendant moved to quash the indictment, and also filed pleas in abatement setting up that the grand jury Avhicli returned the indictment was not organized according to law in that the judge of the court who organized the grand jury, before proceeding to organize said grand jury from those jurors then in attendance upon the court, dreAV from the jury box the names of sufficient additional jurors necessary to complete the juries required, and that such names last drawn were placed in the hat or box together with the jurors first drawn, and from the list as thus completed and placed in the hat or box the names of the jurors to constitute the grand jury were drawn.

Section 20 of the jury law approved August 31, 1909 (Acts 1909, p. 314), provides that whenever there are not enough' qualified jurors in attendance upon the court to form the juries required that the judge of the court shall draw from the jury box names of as many jurors as he may deem necessary to complete all juries then required, and that “the court shall then proceed to impanel, or complete the impaneling of the juries as provided in this act.”'

Section 23 of the jury law provides “that no objection to an indictment on any ground going to the formation of the grand jury which found the same can be taken to the indictment, except by plea in abatement to the indictment; and no objection can be taken to an indictment by plea in abatement except upon the ground that the grand jurors who found the indictment were not drawn by the officer designated by law to draw the same.”

The cases of Osborn v. State, 154 Ala. 44, 45 South. 666, and Nordan v. State, 143 Ala. 13, 39 South. 406, cited by appellant are not in point. In those cases the illegal action consisted in adding to the number of grand jurors after the grand jury had been once légally organized, and not to the manner of drawing, summoning or impaneling the jurors to be organized as a grand jury. In Spivey v. State, 56 South. 232 the jury was not drawn by the officer designated by law.—Fryer’s Case, 146 Ala. 4, 41 South. 172, and Tucker’s Case, 152 Ala. 1, 44 South. 587, are inapplicable. The former case was where a grand jury had been organized without legal warrant or authority in law and held at a time not allowed by law. The latter case is one where the objection was that the officers designated by law did not draw the jury. The ruling of the trial court in denying the motion to quash and in sustaining the state’s demurrers to the defendant’s pleas in abatement is free from error.—Jordan Crandall v. State, 2 Ala. App. 112, 56 South. 873; see, also, Thompson v. State, 122 Ala. 12, 26 South. 141.

The insistence of counsel for defendant in his brief that the indictment is void because one Christopher Columbus Rogers served on the grand jury that returned the indictment, and was not, at any time, drawn as a grand juror, cannot be reviewed when it appears that the question is raised for the first time in this court and no objection was made or exception reserved in the court below. It has been uniformly- held that such an objection, to be available, must have been raised in the lower court.—Code 1907, § 6256; Acts 1909, p. 315, § 23; Nugent v. State, 19 Ala. 540; Morgan v. State, 19 Ala. 556; Bass v. State, 37 Ala. 469; Harrington v. State, 83 Ala. 9, 3 South. 425; Tipton v. State, 140 Ala. 39, 37 South. 231; Hatch v. State, 144 Ala. 51, 40 South. 113; Harrell v. State, 160 Ala. 91, 49 South. 805. The charges requested by the defendant are not numbered, as they should be to avoid confusion in discussing them.—Gibson v. State, 89 Ala. 122, 8 South. 98, 18 Am. St. Rep. 96; Ry. Co. v. Cofer, 149 Ala. 565, 43 South. 102.

The first charge set out in the record as requested in writing by the defendant and refused is erroneous, in that it predicates the belief of defendant that he was in danger, and what 'lie understood to be necessary to entitle him to act in self-defense, and not what the law requires as sufficient to authorize such action. The second charge set out ignores the element of retreat. The third charge set out as refused singles out a part of the evidence and gives undue prominence to it and limits the question of freedom from fault and duty to retreat to a restricted time. The charge is not a sufficient statement of legal principles, but-is confusing in its tendency and involved in the statements as to defendant’s duty to retreat. The fourth charge authorizes the defendant to act npon his honest belief that there was a necessity to defend himself even to the taking of the life of his assailant, without regard to whether his honest belief was such a belief as would under similar circumstances be entertained by a reasonably prudent man. The statement in the latter part of the charge that whether the danger was real or apparent makes no difference provided it was such as to convince a reasonable man that it was necessary for him to act to save himself does not relieve the charge of the vice pointed out, as this statement does not predicate the existence of- a real or apparent necessity for the defendant to kill the deceased in order to save himself, but predicates merely the necessity of some action on his part to save himself.

The fifth charge set out ignores entirely the element of retreat as an essential in acting in self-defense, and is unintelligible.

The charges given at the request of the state are not numbered or designated in any way, and confusion would follow their discussion without setting them out. This is unnecessary, even if incumbent on the court, as a careful examination of these charges leads us to the conclusion that they are all correct statements of principles of law and Avere properly given under the evidence, although the better practice is not to ask or give numerous Avritten charges in behalf of the state.

The record presents no error prejudicial to the defendant for revieAv, and the case will be affirmed.

Affirmed.