White v. State, 136 Ala. 58

White v. State

136 Ala. 58 | Ala. | 1902

DOWDELL, J.

'The appellant ivas indicted together with Everett White for the murder of one Jack Gordon alias John Gordon. A severance ivas had, and the appellant was tried alone, the tidal resulting in a conviction for murder in the. second degree.

On the day set for the trial, the defendant objected to being put upon his trial, assigning as a ground therefor, that he had not been served with a copy of the indictment one entire day before the day of his trial pursuant to the order of the court. This objection was rested upon the grounds, that in the. copy of the indictment served upon him, the name of the person alleged to have been killed ivas stated to he Jack Gorden alias John Gorden, whereas in the original, the name of' the person alleged to have been killed, was stated to be Jack Gordon alias John Gorden. The objection was without merit. The names Gordon and Gorden being idem son aits, the copy served was sufficient. — Munkers v. State, 87 Ala. 96; Nutt v. State, 63 Ala. 180.

The motion to qmish the special venire on the ground of a variance between the. original and the copy served on the defendant was properly overruled by the court. The record and the bill of exceptions show that the orders of the court and the venire served upon the defendant, were in compliance with the statute. The sheriff is required to serve a copy of the special ret) ire drawn, together with a copy of the jurors drawn *65and summoned for tlie week in which the trial is to be had, when the term of the court is for more than one week, upon the defendant. — 'Code, § 5005; Burton v. State, 107 Ala. 108, 112. The ground of variance alleged was the omission in the copy served, of a statement of the residences of the jurors. The provision of the statute directing the jury commissioners to state on the list of jurors selected by them, the residences of the persons as selected, is directory merely; and the fact that the slips drawn from the jury box did state the residences, did not necessarily require that the copy served on the defendant should contain that information. — Code, § 4907; Childress v. State, 122 Ala. 21, 30.

An exception was reserved to the ruling of the court on the competency of the witness G-eorge Cordon, on his voire dire examination. This exception however, is not insisted on in argument by. appellant’s counsel. We think the voir dire examination, cleaily demonstrated the competency of this witness, and the court committed no error in admitting him to testify. — McGuff v. State, 88 Ala. 147; Grimes v. State, 105 Ala. 86; Williams v. State, 109 Ala. 65.

We are, however, of a different opinion as to the correctness of the City Court’s ruling upon the competency of the witness Hubert Gordon. This witness was a child of tender years; the record does not. disclose his exact age, only that he was younger than his brother George Gordon, who was “going on twelve years.” On his examination voir dire, the following questions were asked and responses made: Q. “How old are you?” Ans. “Don’t know.” Q. “Where do you live?” Ans. “Jail.” Q. “Did you ever go to Sunday School or Church?” Ans. “No.” Q. “Who made you?” Ans. “Don’t know.” Q. “What becomes of bad boys when they die?” Ans. “Bad man get ’em.” Q. “What becomes of good boys when they die?” Ans. “Don’t know.” Q. “Is it right or wrong to tell a lie?” Ans. “Wrong.” Q. “Do you know where the ‘chicken farm’ was?” Ans. “No.” Q. “Is there any town near the ‘chicken farm?’ ” Ans. “No, sir.” Q. “How about Attalla, is it near there?” Ans. “Attalla is way off yonder.” Q. “Did *66any one ever tell you about God or Jesus Christ?” Ans. “No.” Q. “Do you know what becomes of good little boys when they die?” Ans. “No.” Q. “Did you ever hear anything about Heaven?” Ans. “No, sir.” Q. “Who made you, Hubert?” Ans. “The Lord.” Q. “Where will you go if you swear a lie?” Ans. “Bad man get me.” Q. “What becomes of good little boys that die?” Ans. “Don’t know.” Q. “Do you know anything about boys being put in jail for sweating lies?” Ans. “No, sir.” Q. “Do you know what ought to be done with boys that swear lies?” Ans. “No, sir.” Q. “When you held up your hand awhile ago did you know what was being done?” Ans. “No, sir.” Q. “Do you know what it is to be sworn,?” Ans. “No, sir.” Q. “Is it right or wrong to tell a lie?” Ans. “Wrong.” Q. “Do you know what ought to be done with a boy that swears a lie?” Ans. “No, sir.” There Avas evidence in the case that the “chicken farm” was the place Avhere the alleged murder was perpetrated, and that the Avitness Hubert was living there at the time with his father, the deceased, and that the “chicken farm” was Avithin half a mile to a mile of the toAvn of Attalla. We think the foregoing examination demonstrated that degree of intellectual and moral deficiency, which Avould render the party incompetent to testify as a Avitness. He clearly had no conception of the solemnity of an oath, and did not as much as knoAv what it Avas to be sworn. He was wanting in that religious training and instruction which excites a hope of future reAvard to the good, and a fear of punishment to the Avicked, and he was without any knowledge of. punishment visited by the law of the land for false swearing. As was said in McKelton v. State, 88 Ala. 181, “The rule is, that persons that have no comprehension of the nature and obligation of an oath, and are incapable of appreciating their responsibility for its violation, should not be admitted as witnesses; and this without regard to the cause from which the defect has arisen, and hence without reference to the age of the Avitness.” While recognizing the rule, that in passing upon the capacity of children of tender years to testify, much must be left to the sound discretion of the *67trial court, and that it is only in strong cases the Ruling of the court admitting them as witnesses should be reversed, we are of the opinion in the present case, and feel so constrained to hold, that the court erred in admitting the witness Hubert Gordon to testify. McKelton v. State, 88 Ala. 181; Beeson v. State, 72 Ala. 191; Carter v. State, 63 Ala. 52; State v. Mitchell, 37 W. Va. 570.

The general rule is, that a non-expert witness should not be permitted to testify his opinion, but should be confined to a statement of the facts — the jury being as capable after hearing the facts, to the formation of an opinion, as the witness is. The question asked the witness Guest, and in answer to which, he gave his opinion, called for matter of expert knowledge; that is, how long the deceased had been dead, when witness saw him. The witness was not shown to be an expert, nor is it pretended that he was. The court erred in permitting him to state his opinion against the objection of the defendant.

In other rulings upon the admission and rejection of testimony, we think the action of the. court was free from error.

The remarks of the solicitor in his closing argument to the jury, which were objected to by the defendant, were improper,and should have been arrested by the court on motion of defendant.

For the errors pointed out the judgment will be reversed and the cause remanded.