124 So. 296 | Ala. | 1929
The suit was civil action for homicide; the verdict was for defendant.
The plea of self-defense interposed was challenged on several grounds. Was it defective in the failure of averment of facts rather than the statements by way of conclusion? Vaughn v. Dwight Mfg. Co.,
The urgent present and immediate peril, or the reasonable appearance thereof to defendant, of the existing necessity to take assailant's life as the preventive alternative must be shown; and that defendant so believed. White v. State,
The jury was selected under the provisions of sections 8610, 8662, 8663, Code 1928. Louis Pizitz Dry Goods Co. v. Cusimano,
"The right of parties to test jurors on the voir dire as to their qualifications or grounds of challenge (Section 8662, Code) is secured in civil and criminal cases in Nix v. Andalusia,
"That is to say that the effect of the adoption of Section 8662 of the Code of 1923 authorizing either party, in civil or criminal cases, to examine jurors as to their qualifications, interest, or bias that would affect the trial of the case, as in other states with like statutes, it is held that the parties in interest are charged with the duty of examining jurors on their voir dire for grounds of challenge, and, not so doing, cannot complain on motion for a new trial. Eastman v. Wight,
It is generally held that it is not necessary that the matter, made the subject of timely and reasonable inquiry by the court or counsel, should constitute a ground for challenge for cause. Within the limits of propriety and pertinence, the parties (having respective peremptory challenges or struck jury), within the sound discretion of the court, had the right to reasonably and timely propound questions to jurors to enable such party or his counsel to intelligently exercise that right, though the matters of which inquiry are made are not a disqualification. Such are the general authorities: Stone v. Monticello Const. Co.,
In Burgess v. Singer Mfg. Co. (Tex.Civ.App.)
It is undoubtedly true that the course and extent of the voir dire is largely within the discretion of the court. Quinn v. Halbert,
It is proper for the court, in voir dire examinations as to qualifications, under statute, section 8645, Code, to inquire as to whether the jurors have been indicted for a similar offense within the past twelve months. Hendry v. State,
In the recent case of Brown v. Woolverton,
See also the case of Cooper v. Auman,
This inquiry of fact presupposed a reasonable and timely examination or cross-examination of jurors, subject to the sound discretion of the court. And in City of Birmingham v. Lane, supra, there were extracts quoted with approval from Leith v. State,
In the case of Burdine v. Grand Lodge of Alabama, supra, Mr. Justice Stone declared: "Competency of corporator as juror, and as witness for corporation. — The society of free-masons being a purely charitable corporation, a member of the society cannot be said to have the smallest pecuniary interest in the event of a suit to which the society is a party; consequently, he is a competent juror, and a competent witness for the society." And the same rule was applied in Tucker v. Houston,
The right of unions for lawful purposes, public and private, is well recognized by the decisions. Brotherhood of Railroad Trainmen v. Barnhill,
The predicate laid by the clerk or stenographer, and that of Mr. Tate in the coroner's office, and the other evidence relating thereto, made relevant the receipt by Jennie Rose, administratrix, by her attorney, as to the .44-caliber Smith
Wesson pistol, as the property of plaintiff's intestate, as was shown by the evidence on the trial of the criminal charge against defendant. The paper tended to identify, describe, and explain the kind of pistol that was formerly in evidence in the criminal court, and that was made the subject of cross-examination in the instant trial; explained its absence in the present trial; it likewise had a tendency of corroboration of defendant's evidence, that intestate possessed at the time and was attempting to draw a pistol that defendant saw immediately before and at the time he fired the pistol shots. It is true, the words of the receipt, "The property of Joe Rose, deceased," were not binding upon the plaintiff as to the title to the property as that of Joe Rose. The paper had a tendency to show that she received it through her attorney of record as the property of her deceased husband, and tended to explain the failure of the coroner to produce the pistol on the last trial, and that it was given to the possession of plaintiff as his property. There was other evidence that there was delivery of the pistol to the attorney when he signed the receipt in question. The indictment and trial of defendant in the criminal division of the court was res inter alios acta in the last or civil trial. The admission in evidence of indictment over plaintiff's objection was prejudicial error, and works a reversal. Birmingham National Bank v. Bradley,
The general authorities touching remarks as to insurance apply or bear analogy to those of acquittal for the criminal charge. The text is as follows (56 A.L.R. page 1522): "There can be no doubt but that statements *125
by counsel for plaintiff, in arguing before the jury, implying or asserting that the defendant carries insurance and will not have to pay the verdict, if deliberately made, are so highly prejudicial as to require a reversal and a new trial, unless, of course, these arguments can be said to be legitimate comment on evidence properly in the case, or unless the defendant's own conduct may have invited or provoked such comment; and, if this is so, there is no reversible error." See, also, the case of Davis v. Quattlebaum,
The preliminary statements of counsel, "We expect the testimony to show that this man has been tried before a jury of 12 men and acquitted," and, "The jury ought to know that this case was tried before, and he was given a verdict," though both were ruled out by the court, should have been followed up by that of declination, on objection, of the indictment in the criminal charge. As to this ruling the bill of exceptions recites:
"Defendant here offered in evidence the indictment in case No. 44,494, State of Alabama v. Charlie Magro, charged with killing Joe Rose, in the Criminal Division of the Circuit Court of Jefferson County, Alabama.
"Plaintiff objected to the question on the ground that it was immaterial, irrelevant, incompetent and illegal, and not the best evidence.
"The Court overruled the objection, stating that said indictment was in evidence.
"Plaintiff excepted to the ruling of the Court."
In this action of the trial court there was reversible error. The foregoing will suffice for another trial.
Reversed and remanded.
ANDERSON, C. J., and SAYRE and BOULDIN, JJ., concur.