Caldwell v. State

84 So. 272, 203 Ala. 412, 1919 Ala. LEXIS 62

• Court: Supreme Court of Alabama
• Decided: June 30, 1919
• Docket: 7 Div. 18.
• Status: Published

Opinions

McCLELLAN, J.

The appellant, Caldwell, stands convicted of murder in the first degree. The _ death sentence was imposed. Cecil Linton, a street car conductor, then in service, was the victim. The tragedy occurred on December 15, 1918. The appellant used a pistol, firing but two shots, one of which killed Linton and the other seriously wounded Morrison, the motorman of the street car. An outline of the event will suffice for present purposes. The appellant had entered the ear as a passenger; an altercation between him and Conductor Linton ensued; the motorman Morrison, went to the assistance of the conductor, and forcibly ejected appellant from the car; from without the car, on the ground, the appellant, drawing a theretofore concealed pistol, shot Linton and Morrison, they being at the time on the rear platform of the car; whereupon the appellant fled from the scene and was, later, during the evening of that day, taken into custody.

[1] On the next day, December 16, 1918— which was during the term of the circuit court beginning, theretofore, in July, 1918, and to terminate by operation of law a few days thereafter (Gen. Acts 1915, pp. 707, 708) —the court entered an order directing re-convention of the grand jury on December 19, 1918. This grand jury had been organized by the court on September 2, 1918, with 18 members. It had made, on September 7, 1918, a written report, wherein the grand jury asked “to be discharged.” The indictment upon which the appellant was tried was returned by this body—15 appearing in obedience to the order of reconvention—on the afternoon of December 19, 1918. Fifteen persons are a sufficient number to constitute a legal grand jury, if, of course, the body is otherwise competent. With interims not important to be now defined, the circuit courts are assigned two consecutive terms, during each calendar year; and for each term at least one grand jury, in counties of the population of Calhoun, is required to be impaneled. Gen. Acts 1915, p. 812, § 13; Gen. Acts 1909, p. 312, § 18. The grand juries so impaneled are such “for that term of the court,” unless dissolved by order of the court. A grand jury, being a part of the court, can only be dissolved by operation of law or order of the court served by it. 20 Cyc. p. 1333; Clem v. State, 33 Ind. 418; In re Gannon, 69 Cal. 541, 11 Pac. 240. A grand jury once regularly impaneled is, nothing to the contrary being shown, presumed to continue until dissolved by operation of law or order of the court. State v. Winebrenner, 67 Iowa, 230, 25 N. W. 146; 20 Cyc. pp. 1032, 1033.

[2] Since there is no record evidence, by which alone may such court action be shown, that the grand jury returning the indictment against appellant had been dissolved by order of the court previous to its reassembly, there is no merit in the appellant’s several contentions that the indictment was preferred by a grand jury not authorized by law. The request made in the September, 1918, report of the grand jury that it be discharged is no evidence that the “court” dissolved the grand jury. That request but expressed the desire of the grand jury, not the action of the court essential to the dissolution of the grand jury which was impaneled to serve during the term ending subsequent to the return of the indictment against the appellant, unless dissolved by efficient order of the court.

[3] On January 6, 1919, an order was entered convening “a special jury session Of the circuit court of Calhoun county.” This order was made on the first day of the 1919 half-year term of the circuit court. Gen. Acts 1915, pp. 707, 708. Section 2 of the act just cited provides:

“That the causes on the dockets for trial shall be called peremptorily at the times fixed by law and at such other times as may be fixed by order of circuit judge; * * * and the eases against prisoners shall be called as many more times as may be necessary to secure prompt trials." (Italics supplied.)

This authorization and direction entirely justified the action of the court in entering the order which, as appears from its terms, was designed to equip the court with juries to serve the purposes contemplated by law as expressed in the quotation from the second section of the act of 1915.

[4] This order also recited that—

“All cases pending in said court and at issue he triable at said special jury session of said court.”

It is insisted for appellant that, since his case was not at issue on January 6, 1919, the date the order was made, his trial was premature; he being arraigned and pleading not guilty on January 10, 1919. The words “at issue” in the order did not introduce any binding limitation upon the power of the court—consonant with the law-enjoined duty to afford “prompt trials” of prisoners—to proceed, during the term, with the trial of any case, civil or criminal, that was at issue then or was thereafter put at issue. The order does not provide for the trial of eases now (on January 6, 1919) “at issue.”

[5, 6] The power and authority of the court to control the business of the court— to determine what cases should be tried that were legally triable during the term, of which this prosecution was one—was plenary under our statutes; and, even if the words “at issue” should be read as only stipulating for the trial of cases now (on January G, 1919) “at issue,” the court was empowered to disregard the effect of the stipulation and proceed to the trial of any cases on the docket that might have been triable during the term, if the stipulation had not been made in the order, a stipulation that the court might have properly omitted. There is, hence, no merit in the contention that the petit juries, later going to constitute in part the special venire to try this appellant, were drawn and ordered summoned without authority of law. The provision of the General Act bf 1909, § 15, p. 311, with reference to the drawing of juries for the next term of the court at least 20 days before the beginning of that term, and providing a remedy for the failure of the judge to do- so, is declared, by section 29 of the act (page 317), to be directory merely, not mandatory; and it is further provided that the time at which the jurors are drawn shall not affect the legality of the body of jurors thus brought into being. Parris v. State, 175 Ala. 1, 6, 57 South. 857.

[7, 8] With respect to the failure of the sheriff to indorse the date of his return upon the process which authorized him to summon the regular jurors for the week of the-court during which the appellant’s case was set for trial will not authorize the presumption that it was premáturely made, without summoning all the jurors so drawn and listed on the process delivered to him. The return of the sheriff affirms that all the persons named on the list were served except one whose name was given. It is to be presumed, in the absence of any showing to the contrary, that the duty of the sheriff to summon the persons named on the list was efficiently discharged, and that the failure to serve the person not served was not attributable to a breach of duty on the part of the sheriff. Furthermore, it is the express provision of the jury law of 1909 (General Acts, p. 320, § 32) that the failure of the sheriff “to summon any of the jurors drawn, or any juror summoned fail or refuse to attend the trial, or there is any mistake in the name of any juror drawn or summoned, none nor all of these grounds shall be sufficient to quash the venire or continue the cause. * * * ” The court was within the exercise of its legal power in excusing the juror Ayers for cause regarded as sufficient by the court. Thomas’ Case, 124 Ala. 48, 27 South. 315; Plant’s Case, 140 Ala. 52, 37 South. 159; Acts 1909, pp. 319, 320. The exception to the action of the court in deciding, over the objection of the appellant, that the juror -Stovall was qualified to serve upon the panel, is not sustained by the record; it not appearing that the objection was grounded upon any fact that would have justified the court in determining to the contrary.

[9-12] The homicide was committed on December 15, 1918. The indictment was returned by a competent grand jury on December 19, 1918. The appellant was arraigned on January 10, 1919; and Ms trial set for January. 17, 1919. After the state had announced ready for trial, the defendant, appellant, moved for a continuance on,the ground that the case was “placed too early for the defendant to properly prepare for trial, and on the further ground that there is a witness, a soldier, who was with defendant at the time of the shooting and who was an eyewitness, whom the defendant has not yet been able to locate, but who may be at the camp here now.” The court overruled this motion for a continuance. It cannot be affirmed of the showing thus made, indicated by the grounds quoted, that the court abused, in any degree, its legal discretion with reference to the granting or refusing of continuance in cases called for trial. A further motion for a continuance of the case was made “on account of the absence of the witness Nathaniel J. Phillips.” This motion was overruled; but the court allowed the defendant to make a show ing for the witness Phillips, and it was admitted on the trial. Error cannot be predicated upon the action of the court in refusing a continuance on this account. Luring the examination of the motorman, Morrison, who was shot at the time the conductor was killed, the state was permitted, over the objection of the appellant, to show the jury where he was shot. This was of the res gestse of the event under investigation, and the exhibition of the place where the motorman was shot was properly permitted. The prosecution, on redirect examination of the witness Yeargin, was permitted, over appellant’s objection, to state the position in which the appellant held the pistol at the time he did the shooting. This matter involved no impropriety; and, besides, no ground of objection to the question propounded was given.

[13, 14] Trial courts are invested with a wide discretion in permitting examinations in rebuttal of evidence theretofore given in the cause. There is not merit in the criticisms, on this account, of the action of the court in. the premises. All questions propóunded to the witnesses that were designed to fully develop the circumstances attendant upon the shooting of Linton by the appellant, including the action of the motorman, the conductor, and the appellant on this occasion, were properly allowed. It is unnecessary to recite questions falling within this category, to which the appellant interposed objections, in some instances without stating any grounds.

[15, 16] The appellant was a soldier, in the service of the United States, at the time Linton was killed. The identity of the person who shot the conductor being at the time uncertain, it was competent for the state to adduce evidence tending to show that the man who did the shooting wore a so-called “sharpshooter’s” medal, and that there was another mark of identification on his uniform. It was likewise competent for the prosecution to show what the appellant said, when in custody, with reference to his possession of a sharpshooter’s medal and his explanation of how he had lost it in his flight. On the cross-examination of the witness Leonard, the prosecution propounded a question intended to elicit the answer that the appellant followed the conductor in his movement through the street car. The appellant objected to the question on the ground of its irrelevancy and that it called for the conclusion of the witness. The court overruled the objection. In his answer the witness said that he did not know, which' one followed the other, thus disclosing that the point of the objection was averted by the answer of the witness.

Every ruling of the court on the admission or rejection of evidence has been carefully considered, and on none of them can a finding of error be predicated.

[17] The oral charge of the court was a full and fair statement of the law applicable to the facts presented to the jury. At the instance of the appellant, the court gave 42 of his special requests for instructions. The court refused 20 of appellant’s special requests for instructions. A number of those refused to the defendant (appellant) were substantially covered by the oral charge of the court and by special charges given at his instance. It is not error to refuse special requests for instructions that would state to the jury the same proposition, substantially, that had been theretofore given. Gen. Acts 1915, p. 815.

[18] The appellant reserved an exception to this part of the oral charge of the court:

“The law presumes malice from the use of a deadly weapon; that is, malice may be presumed from the use of a deadly weapon, unless the evidence which proves the killing rebuts that presumption of malice. If the killing is produced by a deadly weapon, such as a pistol, the law authorizes the jury to presume malice from the killing, unless the evidence which proves the killing shows also that it was done without malice.”

This expression of the court was in accord with the long-established rule prevailing in this jurisdiction. Hornsby v. State, 94 Ala. 55, 66, 10 South. 522; Mitchell v. State, 129 Ala. 23, 38, 30 South. 348. The undisputed evidence went to show that the shooting of the conductor was intentionally done with a deadly weapon.

[18] Another exception to the oral charge of the court brings into question the following statement:

“Premeditation and deliberation here does not mean that the man slayer must ponder over the killing for a long time. It does not mean that he must sit down and reflect over it or think over it for an appreciable length of time; but it may exist and may be entertained while the man slayer is pressing the trigger of the pistol that fired the fatal shot. If it does exist before and while he is pressing the trigger that fired the fatal shot, oven if it be only for a moment or instant of time, it is the premeditation and deliberation as used as an element of murder in the first degree.”

The doctrine thus announced is in entire accord with that illustrated in Daughdrill v. State, 113 Ala. 7, 31, 32, 21 South. 378; Hornsby v. State, supra; and many other decisions in that line.

[20] In its oral charge the court instructed the jury as follows:

“If the killing was malicious, even if it was done in the heat of passion, it is murder. Even if a killing is done in the sudden heat of passion excited by sufficient provocation, such as a blow, if there is malice in it, and if there is also the premeditation and deliberation, as I have defined it to you, then it would he murder in the first degree.”

This expression of the law was accurate and has been often approved. Smith v. State, 145 Ala. 17, 23, 40 South. 957, treating charge 7; Martin v. State, 119 Ala. 1, 6, 25 South. 255; Hornsby v. State, supra; Williams v. State, 161 Ala. 52, 58, 50 South. 59.

[21] As applied to the .evidence in this case, the following excepted-to excerpt from the oral charge of the court was a correct statement of the law under the authority of Nabors v. State, 120 Ala. 323, 25 South. 529; Holley v. State, 75 Ala. 14, viz.;

“He had no right to take the life of Cecil Linton unless a necessity to take his life existed at the time he did take it (if you believe from the evidence beyond a reasonable doubt that he fired the fatal shot), or unless there was apparent necessity to take the life of Cecil Linton. The law requires that there must have been real danger; that he must have been in danger of suffering serious bodily harm or death, or the appearances .of danger must have been such as to have created or produced in the mind of a x-oasonable man the honest belief that there was danger to his life, or that he was about to suffer death, or serious bodily harm.”

[22] The next exception to a part of the oral charge of the court touching the same subject in the court’s mind in the last-mentioned quotation from the oral charge falls within the same established principles and was free from error. In respect of the next excepted-to statement in the oral charge, appellant’s counsel insists that the doctrine established in this state and repeated to the jury in this case did not have application in the present circumstances because the defendant was a soldier, wearing a uniform, and who was taught by the military authorities that an American soldier should never retreat. There is no merit, of course, in this effort to discriminate in such circumstances the application of the established law, in civil courts, to offenders, whether they be soldiers in uniform or not. In civil courts all offenders must be accorded the benefit of and held responsible under the same law.

No error affected the instruction of the jury through the oral charge of the court. It is unnecessary to repeat, seriatim, the subjects of further excepted-to excerpts from the oral charge of the court. They have each been carefully considered; and from this consideration it is manifest that, in so far as the oral charge of the court is concerned, the appellant was accorded a fair statement of the law applicable to his case, and no admonition that would contribute to a just conclusion as between the state and the defendant was omitted or even carelessly stated.

[23] In respect of the refused charges touching the measure.of proof necessary to a verdict of conviction, the record abounds in efficient statements of it; and no error intervened because of the refusal of special requests touching the same subject. In the brief for appellant special requests 5, 6, 10, 11,12,17,19, and 20, refused to the defendant, are treated together. The defendant pressed the theory that sought to avail of the principles that operate to reduce the grade of a homicide when the killing is traceable to an act done in sudden anger or the heat of blood, upon adequate provocation. In Martin v. State, 119 Ala. 6, 25 South. 257, it was said:

“Homicide may be committed in the heat of passion suddenly aroused by a blow, and yet be done maliciously. Suddenly aroused passion and malice may coexist, and both cause the act. When this is the case, the homicide, otherwise indefensible murder, is not reduced to manslaughter by reason of the passion.”

Hence it is always held that requests for instruction touching this particular phase of the law of homicide must exclude the coexistence of malice with a sudden passion or heat of blood where the defendant would reduce the grade of his offense. It is true that this court, in Martin’s Case, interpreted charge 20,.of which charge 17, refused to this appellant, .is a substantial duplicate, as excluding, by its terms, the coexistence of malice with sudden passion under which the defendant acted; but in the more recent decision in Davis v. State, 188 Ala. 59, 70, 66 South. 67 (treating refused charge 33), a different interpretation was given this character of instruction, and its refusal by the trial court was justified. The ruling in Davis v. State was better grounded and is, hence, reaffirmed.

[24] But, in any event, if charges 17 and 20 are interpreted as they were interpreted in the Martin Case, supra—as excluding the existence of malice in the act consequent upon sudden passion—then their substance was otherwise given to the jury by the court. In the oral charge of the court the evidence of defendant’s good character was given adequate and accurate consideration. The appellant’s request numbered 9, touching this subject, was sufficiently covered by the court in this feature of its oral charge. It has been long settled in this state that words of reproach, however grievous, are not a provocation sufficient to free a party taking life from the charge of murder; an assault being necessary in the premises. Felix’s Case, 18 Ala. 720.

Charge numbered 12, refused to the appellant (defendant), was faulty in several respects under the evidence in this case. It will suffice to note that it, along with others, did not exclude, in its hypothesis, the coexistence of malice with the passion the charge recites.

There is no error in the record, and the judgment of conviction must be affirmed.

Affirmed.

ANDERSON, C. X, and MAYFIELD, SAYRE, SOMERVILLE, GARDNER, and THOMAS, XL, concur.