Sanders v. State

131 Ala. 1 | Ala. | 1901

McOLELLAN, C. J.

It has quite recently been determined that an order that the sheriff “serve the defendant with a copy of a list of the names of the persons constituting the jurors'” for the trial of a capital case is sufficient under section 5273 of the 'Code, which requires the service of a copy of the venire for such a trial. — Ford v. State, 129 Ala. 16. This ruling necessarily involves the further proposition that a compliance with such order, the service of a list of such jurors, is in legal substance and effect sufficient under that section, though the paper served may not be a full 'copy of the venire, — by Which is meant the writ issued by the clerk to the sheriff for the summoning of the special jurors and the service upon the defendant of a copy thereof containing also the names of the regular jurors for the week of the trial — in that the list so served is not in the form of a mandate and is not signed by the clerk. That is the case at bar. A perfect list of the jurors for his trial was served on the defendant. It showed on its face that it was such list, it was served, as shown by the return of the sheriff, upon the defendant as such list, and there is no pretense that the defendant was in the least degree misled or prejudiced by the fact that the paper served ivas not in strictness “a copy of the venire" The whole purpose of the statutory provision is that the defendant shall have seasonable notice of the names of the persons from whom the jury for his trial is to be selected. When this sole end of the law7 has been attained by placing before the defendant the names of such persons and acquainting him with the fact that the list presents the names of such persons, it is not conceivable that he could be injured bj7 the absence of technical authentication of the list, but to the contrary it is clear that he has not been prejudiced thereby. So that if it w7ere conceded that the statute wms not literally complied with in this case, the deviation from its terms worked no injury to the defendant, and if technical error was committed by the court in forcing him to trial upon the sendee made, he can take nothing by it, the doctrine of error without injury having been extended by statute to criminal cases. Code, § 4333.

No ruling of the court w'as invoked or had in respect of the action of two jurors in conversing with bystanders immediately after the jury was enrpanneled and sworn (except perhaps on the motion for a new trial). The exception reserved w7as to this action of said jurors and not to any decision of the court in reference to it. It is only rulings of the trial court that can be reserved for review7 in this court.

Motions for new7 trials in criminal cases are addressed to the sound discretion of the trial judge and his rulings upon them are not revisable by this court. Hence, if it be supposed that the matter last above referred to was presented on the motion for a new trial and ruled upon in the denial of that motion, the appellant can take nothing here on account of such ruling. So too as to the separation of the jury after the case had been finally submitted to them, three of them leaving the others in a jury room and going off in charge of a bailiff to attend a call of nature: This matter urns fully presented on the motion for a new trial, and not otherwise; and w'e cannot review' the court’s action upon it. We deem it not out of place to remark, however, that on the facts shown in respect of both these alleged separations of the jury, the court was entirely justified in its action in relation thereto. — Butler v. State, 72 Ala. 179; Nabors v. State, 120 Ala. 323.

The State having proved by the witness Curtis Lockett that the defendant and Mullen, the deceased had a quarrel the day before the homicide, the defense on cross-examination of this witness drew from him the following testimony in relation to that quarrel or difficulty: “I heard very little of the difficulty between Mullen and Luke [the defendant] the day before. I lieai’d Mullen [who was road overseer, defendant working under him] curse the defendant and say to the defendant, ‘God damn your soul, I want you to stop your foolishness and gO' to work, and if you aint going to work put down your tools and go home.’ ” On redirect or rebuttal examination of the witness, the State was allowed against defendant’s objection to 'ask this question: “What was Luke doing when Mullen cursed him and told him to go to work?” To which the witness replied: “He was raking dirt.” The State then asked: “Was he raking dirt or was he standing up?” This question was allowed against defendant’s objection, and the witness answered: “Luke ivas standing up raking dirt.” If there was error in the allowance of these questions by the State, it involved no injury to the defendant since the answers to them were favorable to him, going, as they did, to show that the defendant was working at the time Mullen was cursing him for not working, and of consequence that Mullen’s abuse of him was gratuitous and without palliation. But no erior was committed by the court in this1 connection. If the questions objected to called for particulars of a previous difficulty, they were yet proper because they related to the same particulars as to which the defense had on cross-examination had the witness to testify. Upon the same principle, as also upon the further proposition that when one party draws out a part of a conversation the other party is entitled to prove the whole of it, the State was properly allowed to show by this witness the reply made by the defendant to the remark addressed, to Mm by Mullen, viz., “I aint going home, I am going to work.”

Under all the circumstances of this case, it was palpably competent for the State to prove that after this quarrel the defendant left the place where the quarrel occurred, presumably going home to dinner, and that on his return in the afternoon.he had a pistol, the evidence tending to show that he did not have the weapon before or at the time of the quarrel; such testimony having a legitimate tendency to show preparation for the homicide of the next day, and premeditation in respect of it. So the court did not err in permitting the State to ask this and other witnesses whether the defendant had a pistol on his return to the work in the afternoon of the day of the quarrel. And it was competent for the State 'to prove that defendant’s brother, John Sanders, who Avas present during the quarrel betAveen Mullen and Luke, and who was engaged in the difficulty the following day in which Mullen was killed, had a pistol when he returned to the work in the afternoon of the first day. This also Avent to show community of design on the part of the 'brothers, and joint preparation, and premeditation.

The AAfitness Charley McLaughlin having on cross-examination by the State testified that the defendant, on the occasion of the quarrel between him and Mullen the day before the homicide, said that “he Avould die and go to 'hell before he would take any more of Mullen’s foolishness,” 'the State against defendant’s objection was allowed to ask. him this question: “Didn’t John Green [’Sanders] say at the same time the same thing?” Witness replied: “He did not.” The State then asked this question: “Did you not so testify before; C. C. Johnston acting as coroner in this case?” And to this the witness answered: “I did not so testify before said O. C. Johnston, coroner.” It is clear that the defendant was not prejudiced by this evidence. The effort of the State was to prove that defendant’s brother John Green also used the threatening language which the witness had deposed to defendant’shaving used. The witness swore to the contrary; and when he AAras asked Avhether he had not testified differently on another oceasion, lie swore tlmt lie had not. All that he said in this connection was favorable to the defendant, and the court committed no error of which he can complain by allowing the testimony to go to the jury. In the brief of appellant's counsel this witness is confused with the witness Charlie Sanders, and the further mistake is made of ascribing to Sanders the statement that he did so testify before the coroner. 'Charlie Sanders did not refer to this matter at all in his testimony, and Charley McLaughlin, the only witness who spoke of it, swore, as we have seen, that he did not testify before Johnston, the coroner, that John Green said he would die and go to hell before he would take any more of Mullen’s foolishness.

The defendant fled the country immediately after the homicide. It was sought to be proved in his behalf as tending to show that his flight was not due to consciousness of guilt, that three weeks later a mob was formed and an attempt was made by it to lynch John Green Sanders jointly indicted with him and two other men charged with aiding defendant to escape, all of whom were then confined in the county jail. The court properly excluded this evidence. It is not conceivable that, the formation and actions of this mob three weeks .after defendant’s flight could have been the cause of that flight, or that evidence in that regard could have legitimately tended to show that defendant’s flight was not due to consciousness of guilt.

It. was necessary that the indictment should be taken by tire jury on their retirement to consider of their verdict, The fact that John Green Sanders was also charged in the same indictment jointly with this defendant and that the verdict of the jury which tried him severally the Aveek before, finding him guilty of murder in the first degree, was written on the indictment neither emasculated the indictment as to Luke Sanders, this defendant, nor avoided the legal necessity for the paper being Avith the jury in his case when they .retired to make up their verdict.

The rulings of the court on requests for instructions are not discussed in the brief for appellant. We wall, therefore, content ourselves Avith saying here that they have been duly considered and found to be free from error.

The judgment of the circuit court must be affirmed. The day for the execution of the sentence of death imposed upon the defendant in the court below 'having passed, it will be here ordered and’ adjudged that said sentence he executed on Friday the 7th day of February, 1902.