| Ala. | Dec 19, 1912
Lead Opinion
The defendant was indicted for murder in the first degree, and was convicted of murder in the second degree and sentenced to the penitentiary for 35 years.
The homicide was committed in the town of Cordova, where the deceased, William Tuggle, was shot by the .defendant while the parties were in a gristmill. Both of the parties had carried corn to the mill at the above point, to be ground into meal. Both of them were, for several hours before the difficulty, about upon the streets of Cordova, and the deceased on that day had a difficulty in the town of Cordova with the father of the defendant. In fact, the deceased, before the difficulty in which he was killed by the defendant, saw the town marshal of Cordova and had the father of the defendant arrested.
There was some evidence tending to show that the deceased was not upon friendly terms with the defendant, or with the father of the defendant; and there was also some evidence tending to show that the deceased and the defendant had each, prior to the day of the difficulty, made threats against the other.
The defendant, on the other hand, claimed that he went to the mill to get his meal; that he did not know that the deceased was in the mill; that when he stepped into the door of the mill the deceased at once drew his pistol and began to shoot at him; and that he (the defendant) shot the deceased in self-defense.
The shooting was at very close range. The deceased was struck at least four time, and the defendant, although the deceased shot at him more than once, Avas not harmed. The theory of the state was that the deceased, after the defendant had opened fire upon him, dreAV his pistol and shot at the defendant in an effort to save his OAvn life.
(1) When the case was called for trial, the defendant moved the court to quash the venire facias upon several grounds. The record discloses that when the defendant was arraigned upon, and pleaded to, the indictment, a day was regularly fixed for the trial of his case, and that the presiding judge made an order fixing 75 as the number of persons Avho should constitute the venire from which the jury to try the defendant should be se
While more than 34 names of persons had been drawn to serve as regular jurors for the week in which the defendant’s case was set for trial,- it is not claimed that either more or less than 34 of such persons Avere actually summoned. Neither is it claimed that the sheriff did not “forthwith” serve a true copy of the indictment, together with a correct list containing the names of the 75 persons composing the venire, upon the defendant in person, as required by the above-quoted order of the court. It is therefore apparent that the defendant’s motion to quash the venire Avas properly overruled. — • Special Acts 1909, p. 319, § 32; Jackson v. State, 171 Ala. 38" court="Ala." date_filed="1911-02-19" href="https://app.midpage.ai/document/jackson-v-state-7365495?utm_source=webapp" opinion_id="7365495">171 Ala. 38, 55 South. 118; Savage v. State, 174 Ala. 94" court="Ala." date_filed="1912-01-18" href="https://app.midpage.ai/document/savage-v-state-7365829?utm_source=webapp" opinion_id="7365829">174 Ala. 94, 57 South. 469.
While the jury was being impaneled, one J. 0. Long, Avhose name appeared upon the venire, stated, on his voir dire, that he had a fixed opinion as to the guilt or innocence of the defendant which would bias his verdict, and that evidence Avould not remove that opinion. The state and the defendant both expressed a willing
In a case Avhere the defendant is indicted for a capital felony, the state may challenge for cause any juror Avho has a fixed opinion against capital punishment. In all prosecutions for felonies the state may also challenge for cause any juror Avho is of the opinion that a conviction should not be had on circumstantial evidence. The trial judge therefore properly alloAved the state to challenge for cause the two jurors, J. A. Pate and Luther Morris.
(4) During the progress of the trial, the defendant reserved numerous exceptions to the rulings of the trial court in admitting or rejecting certain evidence. We find nothing, however, in any of said rulings of which the defendant has any legal cause of complaint.
Immediately after the homicide the defendant Avas arrested and placed in the calaboose or town jail of Cordova. A good many people seem to have accompanied the defendant to the jail at the time of his arrest. Immediately after he Avas placed in the jail, he appears to have made certain statements relative to the homicide. All of the evidence shoAVS that these statements were freely and voluntarily made; and, as they Avere admitted, after a sufficient predicate for their admission had been laid, we know of no rule of laAV AAdiich was violated by the court Avhen they were admitted in evidence. The court, also, against the objection of the defendant, permitted the state to offer evidence tending
The above discussion touches the important features of the evidence, to the admission of which the defendant objected. There were other minor objections and exceptions to the action of the trial court in its rulings on the evidence; but, after a careful examination of each of such rulings, we are prepared to say that in its rulings on the evidence the trial court was free from reversible error.
(a) Charges 7 and 33 were bad, in that they ignored the doctrine of freedom from fault, on the part of the defendant, in provoking the difficulty. To successfully invoke the doctrine of self-defense, a defendant must have been free from all fault in provoking the fatal difficulty.
(b) Charge 10, as it appears in the record, is meaningless, and was properly refused.
(c) When the intentional killing of the deceased by the defendant with a deadly weapon has been shown by the state, the burden is then placed by the law upon the defendant to prove that there existed a pressing necessity on his part to take life; and, as a necessary sequence, that he could not safely have retreated without apparently increasing his peril. — Gibson v. State, 89 Ala. 121" court="Ala." date_filed="1889-11-15" href="https://app.midpage.ai/document/gibson-v-state-6513800?utm_source=webapp" opinion_id="6513800">89 Ala. 121, 8 South. 98, 18 Am. St. Rep. 96. Charges 11, 16, 30, 10, and 17 Avere, for the above reasons, if for no others, properly refused.
(d) There was evidence in this case from Avhich the jury had the right to infer that the defendant fired the first, and, probably, the second, shot in the difficulty which resulted in the death of the deceased. The jury had the right to infer that the defendant, when he stepped into the door of the mill, saw the deceased sitting on a sack of corn; and that before the deceased could draAV his weapon the defendant began shooting at the deceased. The jury might also have inferred that before
(e) We will not consider charge 15. It relates to murder in the first degree, and the defendant was convicted of murder in the second degree. Even if, as applied to murder in the first degree, the charge was proper, its refusal was harmless error. •
(f) It has been frequently held that a trial court will not be reversed because of its refusal to give a charge asserting that there is no evidence of a particular matter. In this case there was evidence of circumstances, however, from Avhich the jury had the right to infer that the defendant brought on the difficulty which resulted in the death of the deceased. Charge 18 Avas properly refused.
(g) The law will not justify the taking of human life, the other elements of self-defense concurring, upon the mere honest belief of the slayer that, at the time he colnmits the homicide, his life is in danger at the hands of the deceased. The honest belief must be that of a reasonable man; and such belief must be an honest and reasonable belief. Charges 21 and 27 were properly refused for that, if for no other, reason.
(h) Charge 24 was practically a duplicate of charge 25, which Avas given in writing to the jury, and was therefore properly refused.
(i) Charge 28 assumes' as a fact not in dispute a fact about which the evidence was in serious conflict, and was therefore, on that ground alone, properly refused. There was evidence tending to show that the defendant had a motive for killing the deceased, but charge 28 assumes that the defendant had no motive for the homicide.
We have above considered all the questions presented by this record ivhich appear to possess any merit. The trial court, so far as we are able to trace the course of the trial from the record, in all its rulings on the evidence and in the charges which it gave to the jury, was not only impartial, but kept in all things within the requirements of the law. The defendant’s case was one for the jury, and it appears from this record that all of the defendant’s relevant evidence was permitted to go, without objection, freely before the jury. The written charges which were given to the jury, and which appear in this record, correctly and fully state the law, both for the state and for the defendant, which governed the questions which, under the evidence, the jury was called upon to determine. We therefore lay this record aside with the satisfactory feeling that, in this case, the defendant has been given a full, fair, and impartial trial; and that error prejudicial in any way to the defendant has not only not been shown by the record, but that none in fact existed.
Let the judgment of the court below be affirmed.
Affirmed.
Rehearing
ON APPLICATION FOR REHEARING.
It has been determined by this court that, while either party to a cause may challenge for cause any juror who is a witness in the cause, it is error for the trial judge, of his own motion, to have
A juror, who is a witness in the cause, may have been summoned as a witness to prove some mere formal matter not going to the merits of the cause; and he may stand absolutely unbiased between the parties. For this reason, this court holds that the parties may waive this mere statutory ground of challenge; and that, if they do so,' it is reversible error for the trial judge to excuse such juror ex mero motu.
On the other hand, a juror who has a fixed opinion as to the merits of the controversy between the parties is unfit to serve as a juror in their case; and, in the interest of justice, the trial judge has the inherent power to excuse such juror, regardless of the wishes of the' parties.
Application for rehearing overruled.