41 So. 274 | Ala. | 1906
The defendant was tried on an indictment which charges murder in the first degree, a capital offense. § 5004 of the code of 1806 provides that: “When any capital case or cases stand for trial, the court shall at least one day before .the same is set for trial, cause the box containing the names of jurors to be brought into the courtroom, and after having the same well shaken, the presiding judge shall then and there publicly draw therefrom not less than twenty-five nor more than fifty of such names for each capital case.” It has been uniformly held by this court that this section of the code is mandatory and the record must affirmatively show a compliance with its terms. — Scott’s Case, (Ala.) 37 South. 366; Bankhead’s Case, 124 Ala. 14, 26 South. 979; Watkin’s Case, 89 Ala. 82, 8 South. 134; Washington’s Case, 81 Ala. 35, 1 South. 18; Jordan’s Case, 81 Ala. 20, 1 South. 577. Neither the original record nor the one sent up in response to the certiorari shows the number of jurors that were drawn by the presiding judge.
The evidence adduced on the trial, as appears from the bill of exceptions, shoAved: That the homicide occurred on the 25th day of June, 1904, in Limestone county, at Bakers Mill, Avliere there was a large gathering of people; the occasion being a neighborhood barbecue or picnic. That among those present Avere the defendant, hi* three sons, John Morris, Jr., Walter Morris, and Eddie Morris; also the Avifo of John Morris, Jr. and three small children of Walter Morris. It is not contended that the defendant killed deceased or that he did him any injuiy Ardiatever Avitlr his own hand. But he Avas tried and convicted on the theory that he avos either a conspirator Avith his son, John Morris, Jr., who did the killing, or that he aided and abetted his son, or was pres
When by prearrangement, or on the spur of the moment, “two' or more persons' enter upon a common enterprise or adventure, and a criminal offense is contemplated, then each is a conspirator, and if the purpose is carried out each is guilty of the offense committed, whether he did any overt act or not. This rests on the principle that one who is present, encouraging, aiding, abetting, or assisting, or who is ready to aid, abet, or assist, the active perpetrator in the commission of the offense, is a guilty participant, and, in the eve of the law, is equally guilty with the one avIiq does the act. ' Such community of purpose, or conspiracy, need not be proved by positive testimony. It rarely is so proved. The jury are to deterqnine. whether it exists, and the extent of it, from the conduct of the parties and all the testimony in the case.” —Tanner’s Case, 92 Ala. 1, 9 South. 613; William’s Case, 81 Ala. 4, 1 South. 179, 60 Am. Rep. 133; Martin’s Case, 89 Ala. 115, 8 South. 23, 18 Am. St. Rep. 91; Gibson’s Case, 89 Ala. 121, 8 South. 98, 18 Am. Rep. 96; Elmore’s Case, 110 Ala. 63, 20 South. 323; Evans’ Case, 109 Ala. 13, 19 South. 535; Raiford’s Case, 59 Ala. 106.
With respect to the question of conspiracy or common purpose to kill the deceased, Doc Grisham, it has been strenuously argued in the brief of appellant’s counsel that, before declarations of the defendant tending to show such conspiracy are admissible as evidence, it must appear by evidence aliunde that a conspiracy existed; in other words, that in this respect the conspiracy and not the homicide constitutes the corpus delicti, and not
Upon these considei ations we think the court did not err in allowing Mrs. M. A. Price to testify that a few minutes after the difficulty she heard the defendant say, “We have come here to Id 11 Doc Grisham and we are going to do it.” Its tendency was to show a common purpose between him and his son to kill Grisham, or at least it was competent to go to the jury, arid it was for that tribunal to determine its weight, in connection with all the other .evidence, including the denial of the defendant that he gave utterance to the declaration. For the same reason the evidence of Mus. A. J. Grisham that, “shortly after the shooting of B. F. Grisham (Doc) by John Morris, Jr., she heard Mrs. Ida Grisham screaming, ‘They have killed Doc Grisham,’ ” and at this time she saw the defendant and heard him say, “I hope we’ve
The evidence of witness Malone and Mrs. M. A. Price that about ten minutes after the shooting they heard defendant say he would kill every damned Grisham by the name was properly admitted. The tendency of the declaration was to show malice on the part of the defendant. Its Aveight Avas a question to be determined by the jury. — McManus’ Case, 36 Ala. 285; Plant’s Case, 140 Ala. 52, 37 South. 159; Kerr on Homicide, p. 475, § 430. Nor did the fact that the declaration did not particularize the deceased by his given name render it inadmissible. It Avas for the jury to determine Avhether the deceased Avas referred to. — Harrisons’ Case, 79 Ala. 29; Anderson’s Case, 79 Ala. 8. The facts and attendant circumstances under Avhich the several declarations were made affirmatively show that the declarations Avere made voluntarily, and there could be no valid objection that a proper predicate Avas not laid for the admission of them. — Bush’s Case, 136 Ala. 85, 33 South. 878; Stone’s Case, 105 Ala. 60, 17 South. 144; Prieto’s Case, 117 Ala. 114, 23 South. 691.
W. H. McClellan, the first Avitness examined by the state, testified that the first thing that attracted his attention Avas that lie heard some one remark, “There is going to be a fight.” At the last term, on an appeal by John Morris, Jr., from a judgment of conviction for the killing of the deceased, Doc Grisham, we said of this declaration: “That the undisputed evidence shoAved that
Witness Tucker ivas permitted to testify that shortly before the killing he was standing in a crowd near the dance ring and the defendant was dancing, that he heard the defendant say while dancing: “Where is Doc Gris-ham? Oh, Doc! Doc!! come and dance some while you are mad.” It was a disputed fact on the trial as to who provoked the difficulty in which Grisham was killed, the defendant or the deceased, and any evidence that would cast light on the status of defendant’s mind with respect to Grisham was competent, and we think this evidence was competent for that purpose. Its weight may be slight, but with that we are not dealing. That is a jury question. Tlum the- admissibility of this evidence is strengthened by the declaration made by defendant after the. difficulty, as testified to by Mrs. Price: “We’ve come here, to kill Doc Ga-isham and we are going to do it.” — Morris' Case, (Ala.) 39 South. 609; Armor’s Case, 63 Ala. 173.
All that was said or done by defendant in reference to Doc Grisham on the day of the difficulty and leading-up to the difficulty was competent. Upon this consideration the testimony of Mrs. B. F. Grisham, widow of the deceased, “that about a half hour before the difficulty she heard the defendant at the dinner table curse and call Doc Grisham’s name, but did not understand
Witness Colbert was permitted to testify, among other things, as follows: “I heard the defendant at the dinner table say, ‘Eat, drink, and be merry, and we will shell these damned woods down directly?” In connection with the other evidence in the case, we think there was no error in admitting this evidence.
The proof we think sufficiently showed that John Robinson’s permanent residence was in the state of Tennessee. He had not been subpoenaed, and his evidence given on the preliminary trial of this defendant, with others, was properly admitted. — Lett’s Case, 124 Ala. 64, 27 South. 256. and authorities there cited; Wilson’s Case, 140 Ala. 43, 37 South. 93; Jacobi’s Case, 133 Ala. 1, 32 South. 158.
The motion made by’ the defendant to exclude the state’s evidence as to the shooting of B. P. Grisham (deceased) on the grounds named is without merit. The evidence cannot be said to be free from inference that the defendant conspired to kill Grisham, or that be aided or abetted his son, who killed him. To shown conspiracy to do an unlawful act it is not indispensable that the evidence should show the existence of the conspiracy any definite time prior to the doing of the act. It may have arisen on the spur of the moment. Nor is. it necessary that the conspiracy or common purpose should be shown by positive evidence, but its existence may be inferred from all the attendant circumstances accompanying the doing of the act, and from conduct of the defendant subsequent to the criminal act. — Tanner’s Case, 92 Ala. 1, 9 South. 613; Williams’ Case, 81 Ala. 4, 1 South. 179, 60 Am. Rep. 133; Martin’s Case, 89 Ala. 115, 8 South. 23, 18 Am. St. Rep. 91; Gibson's Case, 89 Ala. 121, 8 South. 98, 18 Am. Rep. 96; Elmore’s Case, 110 Ala. 63, 20 South. 323; Evans’ Case, 109 Ala. 13, 19 South. 535;
It has been (Suggested and seriously argued by counsel for appellant that the evidence for the state should have been excluded upon the ground stated in the motion, “that no conspiracy is shown.” We have adverted to the tendencies of the evidence in this respect, and are satisfied that this was a jury question. But the defendant’s counsel urged that, when this case ivas before this court on appeal by the state from an order granting defendant bail on an application for habeas corpus, this court must of necessity have held that the evidence before it would not authorize or sustain a conviction for a capital offense, and that therefore there was no evidence of a conspiracy. It may be true that the evidence contained in the record in that case did not warrant a conviction for the capital offense, but it does not follow that, because the court affirmed the order of the judge allowing bail, the state was thereby precluded from prosecuting the defendant for murder in the first degree and from introducing other evidence. Nor does it follow that- the evidence contained in the record now before us is the same as was the evidence in the record on the appeal referred to-. Counsel in their brief expressly disclaim any contention that the guilt or innocence of the defendant became res adjudicata by the decision made in the habeas corpus case by this court. But; they contend that in ¡hat case the court having determined that there was no evidence upon which a trial court could permit a- conviction for murder in the first degree to stand, therefore there was no authority for the jury to find for a lesser offense than murder in the first degree, and the court should have excluded the evidence. It seems to us that this argument, logically followed, would lead to the position that the ruling of the court-on the application for bail became res adjudícala. The position, however, of the defendant seems to be that, if two or more conspire to commit a murder, there can be
What occurred from the time that Grisham and the defendant walked to the place at which the difficulty occurred to the conclusion of the' affray was a continuous transaction, and all that was said and dene by the parties to it while the affray was in progress was of the res gesta;. — Wood’s Case, 128 Ala. 27, 29 South. 557, 86 Am. St. Rep. 71; Dixon’s Case, 128 Ala. 54, 29 South. 623; Armor’s Case, 63 Ala. 173; Stitt’s Case, 91 Ala. 10, 8 South. 669, 24 Am. St. Rep. 853; Smith’s Case, 88 Ala. 73, 7 South. 52; Seam’s Case, 84 Ala. 411, 4 South. 521; Amos’ Case, 83 Ala. 1, 3 South. 749, 3 Am. St. Rep. 682; Plant’s Case, 140 Ala. 52, 37 South. 159. In this view, the shooting of McClellan by defendant, the drawing of a second pistol by John, Jr., and, to repeat, everything done and said by the parties while engaged in the difficulty was competent to be shown in evidence.
The evidence elicited by questions propounded by the solicitor to the witness. John Morris, Jr., with respect to a conversation lie had with Torn McLemore in November, 1903, was not competent, as substantive evidence against the. defendant, and we do not apprehend that it was introduced in that light, but only to show the animus of the witness towards the deceased, and thus to affect the credibility of the witness’ evidence. It went to witness’ credibility. We think the evidence was competent for this purpose, and was properly admitted against the specific'objections made by the defendant. That the court did not limit it to this is not a matter of which the defendant can complain, in the absence of a motion on his part to the court to so limit it. Tt may be that the state should have been confined to the proof of the simple fact that there wais a threat made by the wit
On cross examination of the defendant as a witness, the state was permitted to ask him if he did not; “that day after the difficulty, in response to a question asked him by Earl MeGlooklin, while he was still on the barbecue grounds, as to whether or not witness was hurt much, he replied, Not a damned bit; but, by G — d, I am going to hurt somebody before I leave.”’ The witness had t; stified that, when the deceased knocked him down, he jumped on him, caught him in the throat with his left hand, and began to beat him in the face with his right hand. Whether or not the defendant was hurt and the extent of his injuries ivas a material question in the. case. The contention of the state was that deceased struck him only one blow, while the defense contended that he ivas struck several times by the deceased and badly hurt. If defendant said that he Avas not hurt, then it was proper to go to the jury as contradictory of his evidence that deceased knocked him doAvn, caught him in the throat, and struck him several blows. If the question coupled matter that was illegal Avith that Avhich Avas legal, the objection made did net properly raise the question.
This brings us to the exceptions reserved by the defendant to parts of the oral charge of the court and to charges refused to the defendant. The court in its oral charge instructed the jury, among other things, as follows : “I charge you, gentlemen of the jury, that the doctrine of the laAv of self-defense has no field of operation in this case. There is no room for a plea of self-defense in this cause. There is no field of operation for such defense.” This was a. charge on the effect of the evidence, and the court erred in giving it. In his own evidence and that of his son. John Morris, Jr., wo think mav he
Quite a number of written charges were given at the request of the defendant, and quite a number were refused to him. Charges similar to refused charge 7 have been so often condemned by this court that it is hardly necessarv to do- more than cite an authority.- — Mann’s Case, 134 Ala. 1, 32 South. 704.
.Charge 12. refused to defendant, is in this language: “I charge you, gentlemen of the jury, that you cannot find this defendant guilty as an aider or abettor of the killing of B. F. Grisham, if he gave, no assistance or uttered no word to the person doing the killing, if the defendant was not present by preconcert, special or general, nor present with the knowledge of the person doing the killing with intent to aid him, unless he actually took part in the killing himself.” In the case of Raiford v. State, 59 Ala. 106, this court defining the words “aid and abet,” said: “The Avoids ‘aid and abet/ in legal phrase, are pretty much the synonyms of each other. They comprehend all assistance rendered by acts or words or encouragement or support or presence, actual or constructive, to render assistance should it become necessary. No particular acts are necessary. If encouragement be given to commit the felony, or if, giving due weight to all the testimony, the jury a’-e convinced beyond a reasonable doubt.-that the defendant AA-as present with a vípav to render aid, should it become necessary, then that ingredient of the offense is made out.” In the- case of State
The Tally Case recognizes the principle that, if the killing was done in pursuance of a common purpose to do the act, that would be sufficient. And the definition given in the Raiford Case of the terms “aid” and “abet” would be free from objection in a case where the tendency of tiie evidence is to show a conspiracy. The charge under consideration seems to negative the presence of the defendant as a conspirator. But charge 18, refused to the defendant, entirely ignores the theory of a conspiracy, and for this reason, if for no other, must be held bad. Whether or not defendant conspired to kill deceased was a question for the jury. Where there is any evidence, however slight, tending to support a given contention, it cannot be ignored; the contention being a material one. Besides, it would seem that in giving charge 35 the defendant had full benefit of all that is contained in charge 18 — Frank’s Case, 27 Ala. 37; Elmore’s Case, 110 Ala. 63, 20 South. 323; Alston’s Case, 109 Ala. 51, 20 South. 81; McLeroy’s Case, 120 Ala. 274; Amos’ Case, 83 Ala. 1, 3 South. 749, 3 Am. St. Rep. 682; Pierson’s Case, 99 Ala. 148, 13 South. 550.
Charge 20 assumed that all the evidence of conspiracy was circumstantial evidence. The declaration, if made by the defendant, “We’ve come here to kill Doc Gris-ham,” is a confession, or in the nature of a confession, and therefore not circumstantial evidence. Furthermore, it is not indispensible that the state should prove a motive for the commission of the crime, and the charge was argumentative. — Jackson’s Case, 136 Ala 23, 34 South. 188; Hornsby’s Case, 94 Ala. 55, 10 South. 522.
Charge 21 is an invasion of the province of the jury. Besides, it does not' contain a true statement in point of fact.
Charge 29 is practically covered by given charges 32, 33, and 24.
Charge 31 ignores tlie evidence of conspiracy. Besides it seems to be covered by given charges 47 and 00.
Charge 41 may be condemned on two or more grounds. In the first place it assumes that malice on the part of John Morris, Jr., was not indulged in by the defendant. It is misleading, as the defendant may have been convicted of manslaughter (and he was), an offense not involving malice. — Littleton’s Case, 128 Ala. 31, 29 South. 390; Thompson’s Case, 131 Ala. 18, 31 South. 725; Jarvis’ Case, 138 Ala. 17, 34 South. 1025.
Charge 42 is subject to the criticism made with respect of charge 41, that it is misleading. But the theory of the defendant, as shown by refused charge MM is, that there cannot be aiders and abettors in manslaughter. This theory is contrary to the decisions of this court as before noted. — Coleman’s Case, 5 Port. on page 41; Martin’s Case, 89 Ala. on page 119, 8 South. 23, 18 Am. St. Rep. 91; Ferguson’s Case, 141 Ala. 20, 37 South. 448; Code 1896, § 5306. The charge was properly refused, as also were charges MM and ZZ.
Charge 46 invades the province of the jury.
Charge 50. Malice is not an ingredient of manslaughter, and, if charge 50 is a good charge, the refusal of it was rendered innocuous by the verdict finding the defendant guilty of manslaughter. Besides it may be said of the charge that it is misleading.
Charge 53 is a copy of charge 6, which was held to be a good charge in Whitaker’s Case, 106 Ala. 30, 17 South. 456. The charge should have been given.
In given charges 25, 28, 35, 38, and J, it seems that the defendant had the benefit of tire propositions contained in refused charge 2A, and some, of the charges were even more favorable to the defendant than charge 2A, and by giving charge 36 the court rested the conviction alone upon the hypothesis that the jury should find beyond a
Charge AA was properly refused. It relates to self-defense, and does not set forth or define the constituent .elements of self-defense. The same criticism is applicable to charge 1B. — Mann’s Case, 134 Ala. 1, 32 South. 704.
Charge 3B is a mere argument and was properly refused.
Charges CC, DD, and E need not be considered, as the verdict was for no higher offense than manslaughter.— Jarvis’ Case, 138 Ala. 17, 34 South. 1025.
Charge EE is incomplete, in that it ignores the tendency in the evidence that the father (defendant) entered willingly into the difficulty or that he encouraged it. Such charges should negative willingness in entering into the diffteultv. — Gilmore’s Case, 126 Ala. 21, 22 South. 595; Mitchell’s Case, 129 Ala. 23, 30 South. 348; Wilson’s Case, 128 Ala. 17, 29 South. 569; Wood’s Case, 128 Ala. 27, 29 South. 557, 86 Am. Sta. Rep. 71; Sherill’s Case, 138 Ala. 3.
Charge G was properly refused. The postulate that the burden of proof was on the. state to prove that defendant was not free from fault in bringing on the difficulty, without more, was calculated to mislead the jury to believe that retreat and imminent peril were not important factors in the case.
Charge K is argumentative and misleading.
Charges KK and NN are patently bad for reasons given in a former part of this opinion pertaining to the motion to exclude evidence offered by the state.
Refused charge 00 ignores the evidence tending to show a conspiracy. Moreover, John Morris, Jr.’s, right of self-defense depended somewhat upon the status that the defendant occupied with reference to- the difficulty and this the charge entirely ignores-.- — Wood’s Case, 128 Ala. 27, 29 South. 557, 86 Am. St. Rep. 71; Morris’ Case, (Ala.) 39 South. 608.
Charge X, refused to the defendant, invades the province of the jury.
The charge designated XYZ, refused to. the defendant, was properly refused on the authority of Sullivan’s Case, 102 Ala. 135, 15 South. 264, 48 Am. St. Rep. 22. In addition to the. reasons assigned for holding the charge bad, we think the charge should have negatived willingness on the part of the defendant in entering into the difficulty and encouragement of it. — Gilmore’s Case, 126 Ala. 20, 28 South. 595.
We think that it was not in the province of the court to instruct the jury that there was no evidence in the case that defendant aided or abutted John Morris, Jr., in killing Grisham. Having so instructed the jury, it was the duty of the court to recall the jury and in proper manner correct the error. Of course this could only be properly done in the presence of the defendant and his counsel. The presiding judge should sedulously avoid any communication with the jury with reference to the case in the absence of the defendant and his counsel. As the cause must be reversed on other points, and the matter complained of will not probably occur again, we deem it unnecessary to say more with respect to this matter.
For the errors pointed out the judgment of conviction must be reversed, and the cause remanded.
Reversed and remanded.