Griffin v. State

50 So. 962, 165 Ala. 29, 1909 Ala. LEXIS 296

• Court: Supreme Court of Alabama
• Decided: June 30, 1909
• Status: Published

Opinion

SAYRE, J.

— On Monday, the first day of the term, the court fixed the trial of the indictment against the defendant for the following Thursday. The act approved November 22, 1886 (Acts 1886-7, p. 183), provides that the criminal docket of the circuit courts in Perry and other counties therein named shall be taken up on Monday of the second week of each term. The defendant made this statute the basis of an objection and exception to the recited action of the court. The contention is that the statute is mandatory, and that, therefore the court was without jurisdiction to try the defendant on a day of the first week.. In Goley v. State, 87 Ala. 56, 6 South. 287, it was held that a Code provision, identical in every substantial particular with the statute in question, meant only that the criminal docket should be taken up on the second Monday of the term to the exclusion of civil business, but did not deny the court the right to proceed with the trial of criminal cases before that time. We are satisfied with the authority of that case. — Hall v. State, 130 Ala. 45, 30 South. 422.

In support of a motion to quash the venire summoned for the trial of his case, the defendant showed to the court by one of the jury commissioners of Perry county that the jury commission had, at a regular sitting for drawing grand and petit jurors, drawn from the jury box the names of jurors, including that part of the venire for the trial of the cause which was composed of the regular jury impaneled for the first week of the court, in manner following: When a name was drawn out of the box, the commission would decide among themselves whether the man would make a good juror to serve on the grand jury, or a good juror to serve on the petit jury, and the juror would he assigned to one or the other, as he was, in the opinion of the commission, better suited to serve on one or the other. No fraud in the drawing of the juries was charged or shown. Admitting the effect of the last clause of section 7256 of the Code of 1907 to he that it renders innocuous any objection taken to any venire facias for a petit jury, except for fraud in drawing or summoning the jurors, the argument for a reversal on the exception just here in hand is that there was no drawing, but a deliberate selection of jurors prejudicial to the defendant, in that some of the most intelligent and upright men, presumably selected for the grand jury because they were such, might have been upon the petit jury summoned for the trial of defendant, but for their selection as grand jurors. If it be admitted that the argument of prejudice here insisted on was more than a mere speculation, it must he conceded that the method of selection practiced was irregular, and not in strict conformity to statutory direction. But we cannot concede that there was no drawing, nor even that the absence of drawing, omitted in a bona fide effort to accomplish the purpose of the statute, would be fatal to the venire, or the jury organized under it. Who should be jurors appears to have been determined by the drawing, though their distribution to grand and petit juries was determined otherwise. In any event, the irregularity, in the absence of fraud, is saved by the statute. The section (7248) providing the method of drawing juries, grand and petit, is found in the same chapter of the Code of 1907 with section 7256. The last named section enacts that “the provisions of this chapter in relation to the selection, drawing, and summoning oC jurors are merely directory; '* * * and-no objection can be taken to any venire facias for a petit jury, except for fraud in drawing or summoning the jurors.” We cannot assume that the full import of this statute was not understood or intended by the Legislature when it was adopted. The plain wording of the statute overrules the objection taken by the appellant. — Thompson v. State, 122 Ala. 12, 26 South. 141; Childress v. State, 122 Ala. 21, 26 South. 162.

The state’s testimony showed that, immediately before the shooting which resulted in the death of Jeffie Hughey, the defendant approached deceased and exhibited to him a letter, asking him if he knew anything about it. The letter ivas anonymous, and was addressed to N. A. Griffin. It contained threats against the Griffins generally, and against the defendant ami a female member of the family (whose exact relation with defendant does not appear) in particular. The threats conveyed by the letter purported to come from the Hugheys generally, and others. Witnesses for. the state, and defendant himself, testified that the deceased denied to defendant any knowledge of the letter. After the interchange of a very few angry words the shooting followed. The evidence was conflicting whether at the time of the fatal shot the attitude of the deceased was indicative of offensive purpose. During the cross-examination of a witness for the state, the defendant offered the letter in evidence. Thereafter the state brought forward as a witness, a female relative of the deceased, who was permitted to testify, over defendant’s objection, that she had written the letter and that the deceased had no agency in procuring it to be written, noi* any knowledge that the witness had written it. The appellant argues that the fact of the authorship of the letter was foreign to any issue in the cause, and its admission in evidence was calculated to cause the jury to view more harshly the act of the defendant in calling the attention of the deceased to the letter. But to this argument we do not assent. The letter was a threat purporting to emanate from the family to which deceased belonged and directed against the defendant, and so capable of pertinent construction as a threat by the deceased against the defendant. When the defendant, under his plea of self-defense, offered the letter in evidence notwithstanding the denial of the deceased that he was responsible for it, he affirmed by his offer the responsibility in some sort of the deceased, notwithstanding his denial. On no other theory did It have any relevancy to the issue being tried. The letter, then, having been introduced by the defendant as a threat to show the mental attitude of the deceased towards him at the time of the homicide — for so it must be taken — it was competent for the prosecution to show that the deceased had no connection with the writing or sending of the letter, as a fact tending to rebut the inference of hostile temper on his part which the jury might draw from the letter if not thus explained. Being entitled to show that deceased was not responsible for the letter, the state was not limited in proof to the denial of the deceased, but might support that denial by other evidence to the same effect.

Charge 2 refused to the defendant was faulty in that part of it which said: “The question is, was the danger apparently so imminent and present at the time of the killing that a reasonable man and a prudent man situated as Griffin was would believe it was necessary to kill in order to avoid loss of life or to prevent great bodily harm; and if, from all the evidence in the case, the jury have a reasonable doubt whether such was the case when the defendant killed Hughey, then if you believe defendant was free from fault in. bringing on the difficulty, and did not fight willingly and could not retreat without increasing his peril, you must acquit him.” This was a summary or brief restatement of what had been stated in the fore part of the charge, and the jury would have had the right to treat this concluding summary as a complete statement of the law the charge was intended to state. As such it was defective, because it pretermitted any mention of the fact, necessary to acquittal on the ground of self-defense, that the belief of imminent danger and necessity to kill must be honestly entertained as well as reasonable. “The law requires that such belief must be both reasonable and honestly entertained.” — Jackson v. The State, 78 Ala. 471; Storey v. State, 71 Ala. 330; McCain v. State, 160 Ala. 37, 49 South. 361, and Williams v. State, 161 Ala. 521, 50 South. 59, both at the present term.

Charges 3, 6, 8, 9, and 10, among other things, assert that there is evidence of certain facts. It has been frequently held that courts cannot be required to declare to juries that there is or is not evidence of particular facts. Their business is to declare the law. — Troup v. State, 160 Ala. 125, 49 South. 332, and authorities there cited. Charges of the sort are also bad because they give undue prominence to certain parts or phases of the evidence. Appellant relies upon the authority of Harris v. State 96 Ala. 24, 11 South. 255, in support of his contention that the refusal of these charges was error. There are two reasons why that authority does not avail the appellant. For one, the charge in that case did not undertake to state the evidence, but the contradictory statements, relied on for an impeachment of the witness, were stated in the charge with hypothesis. For another, not affecting, however, charge 8, the eminent judge who wrote the opinion in Harris’ Case, in the later case of Hale v. State, 122 Ala. 85, 26 South. 236. speaking of charges touching the credibility of witnesses, quoted Roberts v. State, 122 Ala. 47, 25 South. 238, which dealt with similar charges, as follows: “Charges 5 and 6, requested by defendant are not offensive to the rule against giving undue prominence to particular parts of the evidence, but come within the exception to the rule as laid down in the cases of Harris v. State, 96 Ala. 24 (11 South. 255), and Smith v. State, 88 Ala. 73 (7 South. 52).” In the last-named case of Smith v. State it was said that there was no desire to qualify the general principle that the jury should not be instructed to consider certain parts of testimony. A limited, exceptional class of cases was, however, recognized as not falling within the rule, and among them the case in which there is testimony of threats, communicated or uncommunicated, made by the person on whom injury was inflicted. We are not disposed at this time to inquire into the merit of the distinction drawn. It is sufficient in this case to say that the Charges requested by the defendant, numbered 3, 6, 8, 9, and 10, were properly refused for one or the other, ’or both, the reasons indicated. The case in hand illustrates the vice of such charges. In successive charges the court is required to say to the jury that there is evidence of threats made by the deceased and communicated to the defendant, that the defendant was in imminent peril of life or limb, that he could not retreat without increasing his peril, that he was free from fault in bringing on the difficulty, and that he acted in self-defense. If these charges were not properly refused, then they might have been appropriately combined in one charge. At any rate, the jury would be expected to read them in connection with one another. Than such a charge, or such a series of charges, one or a series more palpably misleading and argumentative can hardly be conceived.

Charge 4, if not otherwise objectionable, was properly refused for that it pretermits the defendant’s duty to retreat. The ambiguous statement that “he had a right to protect himself by taking the life of Jeffie Hughey if such protection could not otherwise be secured” cannot do service for a statement of the defendant’s unequivocaal duty to retreat unless to do so would increase his peril.

Charge 7 predicates defendant’s freedom from fault in bringing on the difficulty upon the fact that he approached the deceased in a peaceable manner, and .in a peaceable manner asked him if he knew anything about the letter which had been offered in evidence. Defendant offered evidence to sIioav numerous threats made by the deceased against him, of Avhich he had been informed. Bad blood not only existed between the defendant and the deceased, but the letter, the divorce of the defendant and the sister of the deceased, and some other facts appearing in the record,- go to show that the feeling included the families of both. Under these conditions the act of the defendant, in approaching the deceased on that subject, Avithout regard to his mere manner, Avas capable of. being construed as a threat. It was an implied assertion that the defendant at least suspected that the deceased was responsible in some Avay for an offensive anonymous letter. Such an assertion, such an uncovering of an old sore, hoAvever, disguised under a peaceable manner, Avas calculated to arouse anger and resentment, and it was for the jury to say whether it constituted fault in bringing on the difficulty. The doctrine that the plea of self-defense is not available to a defendant Avho is not free from fault in the creation of a necessity to take the life is “too important, too conservative of human life and of good order, to allow it to be frittered away.” — Johnson v. State, 102 Ala. 19, 16 South. 105. And in McQueen v. State, 103 Ala. 17, 15 South. 825, it is said that “the law admits no qualification of this requirement. The defendant must have been free from all fault or wrong doing on his part which had the effect to provoke or bring on the difficulty.” — Crawford v. State, 112 Ala. 1; 21 South. 214. The charge invaded the province of the jury, was misleading, and was properly refused.

Charges 13, 14, 16, and 17 hypothesized substantially the same facts as charge 7 in respect to the manner in which the defendant approached deceased and added, “and that the defendant was without fault in bringing on the difficulty.” These charges referred the issue of defendant’s fault to the jury, but gave undue prominence to the facts hypothesized in the charges, preterxnitted history of the previous relations between defendant and deceased as illustrating the purpose of the defendant, and were calculated to mislead the jury to the conclusion that on consideration of the facts stated in the charges, without more, they were authorized to find that the defendant was altogether free from fault.

It hardly needs to be argued that a charge is an argument and not a statement of law, which asserts that “no definition of an overt act can be given. It may be a motion, a gesture, conduct or demonstration, or anything else which evidences reasonably a present design to take the life of the defendant, or to do him great bodily harm. Trifles, light as air when viewed alone, may become fraught with deadly meaning when viewed in connection with all the preceding facts disclosed and with all the evidence in the case.” Charge 11 was palpably bad.

It is the settled law of this jurisdiction that there is no presumption in respect to a defendant’s character being good or bad. — Danner v. State, 54 Ala. 127, 25 Am. Rep. 662; Little v. State, 58 Ala. 265; Sullivan v. State, 102 Ala.. 135, 15 South. 264, 48 Am. St. Rep. 22. We are not inclined, for any reasons there appearing, to follow the adjudications of other states contrariwise. There was no error in the refusal of charge 12.

The defendant requested, and the court refused, charge 15, as follows: “I charge you, gentlemen of the jury, that if you believe from the evidence that Jeffie Hughey was a man whose general character was that of a violent, turbulent, and bloodthirsty man, that if you believe from the evidence that Jeffie Hughey made a hostile demonstration towards the defendant, I charge you that the defendant had a. right to act more promptly to protect himself from injury than if such hostile demonstration had been made by a man who was not of general bad character for violence, turbulence, and bloodthirstiness. Appellant cited Roberts v. State, supra, and Karr v. State, 100 Ala. 6, 14 South. 851, 46 Am. St. Rep. 17, as authority in support of his argument that there was error in the refusal of this charge. These cases do assert the general proposition that, when one is assailed by another whose character is bad for violence, turbulence, and bloodthirstiness, more prompt and decisive means of defense are justifiable than if the assailant is of peaceable disposition; but they do not affirm the propriety of the charge in question in a case involving conflicting inferences as to who was the aggressor. If, as the state’s evidence tended to show, the defendant was the aggressor, he could not justify his aggression, whether prompt or otherwise, by invoking consideration of responsive hostile demonstration on the part of the deceased. This aspect of the case is left out of view by the charge, and for this reason it was misleading and properly refused.

We agree with counsel representing appellant that charge 5 was properly refused.

In the criticims we have made of the several charges, we must not be understood as affirming that they are free from fault in other respects.

The judgment of the trial court must be affirmed.

Dowdell, C. J., and Anderson and McClellan, JJ., concur.