Andrews v. State

48 So. 858, 159 Ala. 14, 1909 Ala. LEXIS 683

• Court: Supreme Court of Alabama
• Decided: February 4, 1909
• Status: Published

Opinion

SIMPSON, J.

The appellant was convicted of the crime of murder, and his punishment fixed at death.

The city court of Bessemer was created hy the act approved February 28, 1901 (Acts 1900-01, p. 1858; Loc. Laws Jefferson Co. [by Weakley] p. 115). Section 10 of that act provides that cases then or thereafter pending in the criminal court of Jefferson county “may be, by consexxt of the parties thereto, transferred to said city court of Besssemer;” and section 25 provides that in all cases where a party is arrested on an indictment, “for an offense arising or committed by him in said district, * * if said warrant or capias or other process is returnable to the criminal court of Jefferson county, and the defendant makes bond for his appearance, his case shall be removed to said city' court of Bessemer, and the papers shall thereupon becoxixe returnable to said city court of Besssemer, and the case triable there.” Section 26 provides that, in all cases where the defendant fails or refuses to make' bond at the time of his arrest for an offense committed in said district, he shall be confined in the county jail at Birmingham, and his case stand for trial in the criminal court of Jefferson county, provided that “if any person who is confined in said jail for an offense committed in said district, within the jurisdiction of said city court, shall make a good and sufficient bond for his appearance at the said city coxxrt, to answer the charge preferred against him, it shall be the duty of the sheriff to immediately return said bond to the clerk of the criminal court of Jefferson county, and the case shall thereupon stand removed to the city court,” and it shall be the duty of the clerk to transmit papers, etc.

It is first insisted by appellant that the record shows that the indictment in this case was found in said criminal court of Jefferson county, in April, 1906, and, as shown by the transcript, was not certified to the city court of Bessemer until the 14th day of February, 1908-, after this case had been tried, and the defendant convicted, on the 6th day of January, 1908, and that consequently, at the time of trial, the city court of Bessemer was without jurisdiction to try this case. The transcript from the criminal court of Jefferson county, in the record, shows that, on the motion of the defendant, his case was transferred to the city court of Bessemer on September 17, 1907. We think it sufficiently appears that this case was transferred to said city court before the trial of the same, and the indictment was in court. — Dudley v. Birmingham, etc., Co., 139 Ala. 453, 461, 36 South. 700. The court had jurisdiction. In the case of Rose v. State, 117 Ala. 77, 79, 23 South. 638, 639, the record failed to show “anything touching the transfer of this cause.”

The organization of the trial court sufficiently appears from the transcript brought up by certiorari. While it is true that the name of the court is not stated at the head of the minute entry as to the arraignment of the defendant and the fixing of the day for his trial, yet it shows that Hon. Wm. Jackson was presiding, and in connection with the cértificate of the clerk at the end of the transcript it sufficiently shows that the order then made was by the city court of Bessemer.

The return to the certiorari shows also that the special jurors were drawn according to law. — Loc. Acts Jefferson Co. (Ast Feb. 11, 1901) 705. It appears from the record that the excusing of the jurors Brown and Betts by the court was upon the impaneling of the juries at tbe organization of the court, which was within the discretion of the court, and not error.

Section 33 of the act creating said city court of Bessemer provides that the petit jurors “shall be drawn and summoned from said district.” Consequently it was error to place the juror Lynn on said jury, who was shown to live outside said district.

The act provides (section 33) that, “in completing the juries for the trial of any capital case, the judge of said city court shall draw, under the provisions of this act, the names of persons subject to jury duty, residing within two miles of the place where said court is held in the city of Bessemer.” Consequently there was no error in placing upon the jury Lon Tyler, who lived more than two miles from the courthouse at Birmingham, but within two miles of Bessemer; but there was error in placing upon the panel Bob Vance, who resided within two miles of the courthouse at Birmingham, but not within two miles of Bessemer.

But there was no error in sustaining the objections to the questions propounded by defendant to the witness Capt. Crook as to the manner of drawing the juries, as the provisions of law in regard to the selection of jurors are merely directory, and no objection can be made, except for fraud. — Code 1896, § 4997; Code 1907, § 7256; Baker v. State, 122 Ala. 12, 26 South. 141; Childress v. State, 122 Ala. 21, 26 South. 162.

The witness Millstead, in relating the res gestae, had been allowed without objection to testify as to the wound he received in his thumb and side during the difficulty, and it was sought by the defendant to discredit his testimony, by showing, from the position of the wound, that he was facing the defendant, with his pistol in his hand, pointed at defendant. It was not error to allow him to show the wounds received by him. It is true the defendant was not on trial for shooting him; but the course of the examination, just preceding, by the state and defendant, made this testimony pertinent.

There was no error in allowing the clothing which was worn by the deceased to be introduced in evidence.— Holley v. State, 75 Ala. 14.

There was- no error in overruling the motion by the defendant to exclude the testimony of the witness Stallings. No objection was made to the questions, and no reason is assigned for excludinig the testimony.

On cross-examination the state asked the witness Dr. Carter, 'who had testified to the good character of the defendant, “How many fights do you recall that he has had?” and he answered that he had heard of but two. The defendant objected to the question, and moved to exclude the answer, both of which were overruled. While the character of a Avitness or of the defendant cannot be proved by particular acts, nor can the evidence of his good character be rebutted by proof of particular acts, yet, for the purpose of testing the credibility or accuracy of the character Avitness, he may be asked, on cross-examination, whether or not he has heard of particular acts. — De Arman v. State, 71 Ala. 351, 361; Jones v. State, 76 Ala. 9, 15, 16; Jackson v. State, 78 Ala. 471, 472; Moulton v. State, 88 Ala. 116, 119-20, 6 South. 740, 16 Am. St. Rep. 52; King v. State, 89 Ala. 146, 7 South. 750; Lowery v. State, 89 Ala. 45, 49, 13 South. 498; Thompson v. State, 100 Ala. 70, 71, 14 South. 878; Goodwin v. State, 102 Ala. 88, 98, 45 South. 571; Smith v. State, 103 Ala. 57, 70, 15 South. 866; Terry v. State, 118 Ala. 80, 86, 23 South. 776; Carson v. State, 128 Ala. 58, 60, 29 South. 608; Williams v. State, 144 Ala. 14, 18, 40 South. 405. There Avas no error in overruling the objections to this question, and the three following ones, of the same tenor. The following question, also, as to whether the defendant had not. been regarded by the citizens of the community as a desperate character, Avas proper, on cross-examination.

As the ansAver to the question to the Avitness Dr. Winters, Avhether a ball entering clothing would make a hole about the size, of a bullet, was, “It might, and it might not,” the overruling of the objection to that question was immaterial. The question as to whether the hole showed he was shot from behind- was not answered, except by showing that the witness could not tell anything about it. Hence there was no error, injurious to defendant, in overruling the objection to the same.

The recalling of I)r. Winters by the state did not result in any injury to the defendant; hence he cannot complain. Nor was there any injury to him in the re fusal to permit the witness to state over, on redirect ex animation, what he had just stated on cross-examination. The witness Hannon stated that he was in a stall in the stable, and that Babe . Justice was not there. He was asked by the defendant, “you could have seen him?” The state objected, and the court sustained the objection. This was error. The evidence shows that “Babe Justice” was another name for Tom Justice, who had testified, and it was proper to ask the witness whether he could have seen him, if he had been there. — Tesney v. State, 77 Ala. 33.

The witness Moody, on behalf of the defendant, stated that he had lived in Bessemer 18 or 19 years, had known the defendant 16 or 17 years, knew his general character, and that it was good. He also made other statements about the defendant’s honesty, politeness, etc., about having business dealings with him, and testified that witness was a real estate man and talked with a great many people, etc. On being asked on what he based his opinion of his character, he stated that “the defendant had worked for him a good whilej had had access to all his valuables,” but that “he had never missed anything, and defendant was always exceedingly polite and obliging.” The state asked him, “Is that what you base your opinion on?” and he replied, “Not altogether; I never had any occasion to think his character was bao." The state moved to exclude the testimony; and the court said, “Gentlemem, you are not to consider the testimony of this witness.” This was error. The statement of the further facts was not sufficient to take from the'jury the testimony of the witness that he knew the general character of the defendant, and it was good. The statement of the court excluded all of the testimony of the witness from the jury.

There was no error in excluding that part of Lipscomb’s testimony preceding the exception, as he did not testify to a knowledge of the defendant’s general character, but stated that he based his opinion on his general observation of him.

The question to the witness Huey, “Tell the jury if you saw the pistol balls near the watering tub,” was objectionable, as being a leading question, and also as assuming the fact that the pistol balls were there. Consequent ly there was no error in sustaining the objection to it.

Upon anther trial the defendant should be permitted to prove the character and condition of the pistols which were introduced on the preliminary trial, in order that the jury may determine whether they were the same pis tols and in the same condition as when introduced in this trial.

There was no error in asking the witness Huey, on cross-examination, whether he had known of the defendant’s having been in other troubles. Bee authorities supra.

The court erred in overruling the objection to the question by the state, “And you jumped on an old man by the name of Price down there?” See cases supra.

There was no error in overruling the objections to the question to the witness Patton as to statements made by the defendant, shortly after the shooting, that he did not know who did the shooting. This ivas not in the nature of a confession; and, if the intention was to contradict the witness, no predicate was laid.

In charging the jury, it is the duty of the judge to give the law applicable to all theories presented by the testimony and, if he recapitulates the evidence on one side, to recapitulate it also on the other side, and not to indicate, by the matter or manner of the charge, what his own views are as to the effect of the testimony. — 1 Blashfield on Instructions to Juries, p. 139, § 56; 12 Cyc. 612, 613: Banks v. State, 89 Ga. 75, 14 S. E. 927; State v. Gilmer. 97 N. C. 429, 1 S. E. 491; Aaron Co. v. Hirschfield, 89 Ill. App. 205; Wright, et al. v. Central R. R. & B. Co., 16 Ga. 38; State v. Moses, 13 N. C. 452;; Smith v. State, 68 Ala. 425, 432. We cannot say whether the oral charge in this case was liable to the objection that it summed up the evidence on one side, and not on the other, as the entire oral charge is not set out in the bill of exceptions; but we are disposed to think that the manner of stating the evidence indicated pretty clearly to the jury the judge’s own impressions of the weight and effect of the testimony, and that it was an invasion of the province of the jury. However, the statement that “the evidence on the part of the state goes to show that this defendant fired all three of those shots” goes beyond the rule laid down by our courts, to the effect that the judge maistate the tendency of the evidence on both sides (White v. State, 111 Ala. 92, 97, 21 South. 330); and it is also erroneous because some of the evidence produced by the state tends 'to show that the pistol of the deceased was fired once. It was erroneous, also, to charge (in the oral charge) about the shooting of Milstead, as the defendant was not on trial for shooting him. This court has also condemned “an argument by the court against the defendant on the evidence.” — McIntosh v. State, 146 , 141, 37 South. 223. Without passing upon that phase of the oral charge, we merely cite these authorities for the future guidance of the court.

The court erred in charging, “If you find this defendant killed Taylor Johnson, then this defendant is guil+y. The next thing for you to do is to fix the degree of punishment.” This ignored entirely the defense of self-defense, which the evidence for the defendant tended to sustain.

■The court erred in refusing to give charge 1, requested by the defendant.

There was no error in refusing to give charge 2, requested by the defendant. “What are elements of the offense is a question of law for the court.” — Whatley v. State, 144 Ala. 69, 39 South. 1014, 11th. h. n. Moreover, although the evidence might not show “the constituents of the crime charged,” yet it might show the commission of a lesser degree of crime, covered by the indictment.

Charge 3, refused to the defendant, was properly refused, as it was misleading. The same is true of charges 4, 5, and 6; and these are argumentative as well.

There was no error in the refusal to give charge 7. It failed to hypothesize the belief of the defendant that he was in imminent peril, and also failed to mention either the matter of retreat or domicile.

Charge 8 is involved and uncertain in its meaning, and was properly refused.

Without noticing specifically each of the other charges which were requested by the defendant and refused by the court, it is sufficient to say that if one who is free from fault in bringing on the difficulty is attacked by another, in his own house or place of business, in such a manner as would raise in a reasonable mind the belief that he is in imminent danger of great bodily harm, and he is so impressed, he is. not under any obligation to retreat, but may take the life of Ms assailant, and be justified under the law. While he must be without fault, yet the burden is not on him to show freedom from fault, but on the state to show that he was not free from fault.

The judgment of the court is reversed, and the cause remanded.

Reversed and remanded.

Tyson, C. J., and Denson and Mayfield, JJ., concur.