Mitchell v. State, 129 Ala. 23

Mitchell v. State

129 Ala. 23 | Ala. | 1900

SHARPE, J.

It was not a valid ground of objection to the. grand jury which found the indictment or to the special ren ire from which the petit jury was selected that they were not drawn by or in the presence of the sheriff, clerk and probate judge, according to the act of February 28, 1887. That act was altered by the adoption of the Code of 1896 so as to conform to the provisions of the jury laws as contained therein. — § 4976, et seq.; Baker v. State, 122 Ala. 1; Thompson v. State, Ib. 12; Childress v. State, Ib. 21.

The day set for the trial of this case was a week subsequent to the week in which the special jurors were drawn. In such case the statute provides that the special jurors drawn “together with the jurors drawn and summoned” for the week of ithe trial shall constitute the venire from which the jury to try the case shall be selected. — 'Code, § 5005. Without deciding whether Allen and Dabbs were drawn, it is enough to say the evidence shows affirmatively that they were not summoned under the venire facias issued for the regular juries but *38were talesmen and did not belong to the 'special venire in question.—Floyd v. State, 55 Ala. 61; Thomas v. State, 94 Ala. 74. The fact that the names of those jurors did not appeal- on the list of jurors served on defendant or his counsel was noit ground for quashing the special venire.

The proposition stated by the court in its oral charge with reference to the presumption of malice arising from the use of a deadly weapon was correct as applied to the. evidence in the case.—Gibson v. State, 89 Ala. 121; Miller v. State, 107 Ala. 40.

At defendant’s request many written charges were given which collectively hear on most if not all the important principles proper for the consideration of the jury. Those, charges are in the transcript and are found to embody substantially the propositions asserted in refused charges numbers 12, 30 and 34; hence criticism of those charges may be omitted upon the settled principle that the court is not bound to repeat instructions which have been in substance given in other written instructions.—Ratliff v. State, 122 Ala. 104; Liner v. State, 124 Ala. 1; Taylor v. State, 121 Ala. 39, and cases there cited.

The proposition of charge 1 that “mere suspicious circumstances are in themselves insufficient to justify a conviction for crime” was not applicable to this case, inasmuch as the proof connecting the defendant with the killing was not circumstantial but was direct, positive and without dispute.—Welch v. State, 124 Ala. 41.

The mere fact that in the whole evidence some reason might have been found for doubting defendant’s guilt without regard to whether such reason was a substantial one or to what extent it was outweighed by other reasons so found, did not as a matter of law prevent a verdict of conviction as was in substance asserted by charge 4.

Charges 5, 6, 13, 21 and 32, are objectionable as being argumentative and giving prominence to parts of the testimony favorable to the defendant to the obscuration of evidence having an opposite tendency. Frost v. State, 124 Ala.85.

*39Neither threats by the deceased nor his character, however had, would have justified the defendant in killing him if -defendant was the aggressor.—Winter v. State, 123 Ala. 1; DeArman v. State, 71 Ala. 351. Therefore in view of the evidence tending to show he was the aggressor, charges 7 and 8 were each had if for no other reason because, they do not hypothesize that the defendant was without fault in -commencing the difficulty.

Number 9 was argumentative, and besides it was abstract in that there was no evidence indicating that defendant’s flight was on account of his being in a strange land without relatives or friends. Moreover, the) jury wms not bound to reject the fact of flight as evidence of guilt though they may have considered it doubtful whether it ivas inspired by -conscious guilt.—Kelso v. State, 47 Ala. 573.

Charge 10 was abstract in proposing to turn inquiry upon whether defendant’s son had insulted the daughter of deceased. The only legal evidence bearing on that subject was in disproof of such insults. •

The court was not bound to give charges having no other purpose or bearing than to meet arguments of opposing counsel as appears to have been the case with charges 11 and 15. — Hawes v. State, 88 Ala. 37; Brown v. State, 121 Ala. 9.

Defendant was not injured by the refusal of -charge 14. So much of it as involved the defendant’s right to carry a gun for defensive purposes was included in given charge 33; and the remainder had reference -only to his mere abstract right to carry a gun along the road asserting -a mere truism about -a matter not in -controversy, and not pertinent to the issue.—Gafford v. State, 122 Ala. 54.

One fault which characterizes numbers 18 and 20 is that they each assume that malice cannot enter into a homicide resulting from -sudden passion, whereas malice may arise on the instant and may co-exist and cooperate with passion suddenly aroused. 18 would also have invaded the province of the jury in specifying what acts of provocation would reduce the offense below murder.

*40The law presumes malice from an intentional use of a deadly weapon in tlie commission of homicide unless the 'existence of malice is rebutted by the evidence which proves the killing.—Hornsby v. State, 94 Ala. 55; Miller v. State, supra. Charge 17 misstates that rule.

Defendant’s right to kill in defense of his son depended on the same conditions as would have been necessary to excuse the son if he had killed the deceased. ' If the son was at fault in commencing the difficulty that fact precluded any right of the defendant to kill in order to extricate or protect him. Charges 16 and 33 are bad in not hypothesizing the son’s faultlessness in 'that respect, without Avhich the defendant could not lawfully have killed or purposed to kill the deceased.

Charge 19 was 'calculated to mislead the jury to believe the killing if done in hot blood could not have been malicious.

Charges 22 to 28, inclusive, are bad in predicating a. right to acquittal on self-defense without hypothesizing the existence of conditions which must have existed in order to give the right to act in self-defense, viz., defendant’s freedom from fault in bringing on the difficulty, his inability to retreat without increasing his own danger and a real or apparent necessity to kill, in order to save himself from great bodily harm.—Roden v. State, 97 Ala. 54; Miller v. State, supra; McLeroy v. State, 120 Ala. 274; (Golson v. State, 124 Ala.8.

No. 29 fails to recognize that defendant may have been at fault so as to preclude him from setting up self-defense by conduct short of provoking the encounter, as by encouraging and engaging in "the difficulty willingly.—Harris v. State, 123 Ala. 69; Howell v. State, 79 Ala. 284.

No. 31 taken as a whole is so confused and obscure of meaning as to be capable of misleading the jury.

A single error appears in the many rulings assigned as error and that -consists in the refusal to give charge 2. That charge combines two principles each of which as stated in separate charges has. been sanctioned by decisions of this court; first, to warrant a conviction the *41evidence must be sucli as to convince each juror of guilt beyond a reasonable doubt (see Carter v. State, 103 Ala. 93; Grimes v. State, 105 Ala. 86; Hale v. State, 122 Ala. 85) ; second, such doubt arising from any part of the evidence upon consideration of the whole, precludes a rightful conviction.—McLeroy v. State, 120 Ala. 274; Turner v. State, 124 Ala. 60. Charges somewhat like but different from those considered in ithe cases cited in support of the first proposition were condemned in Cunningham v. State, 117 Ala. 59, and Lewis v. State, 121 Ala. 1; but respecting that feature the charge now in question cannot be distinguished from those passed on in .the cases of Garter, Grimes and Hale, supra, fit must be held that the refusal of charge 2 requires a reversal of the judgment.

Reversed and remanded.