Kemp v. State

89 Ala. 52

• Court: Supreme Court of Alabama
• Decided: November 15, 1889
• Status: Published

Opinion

McCLELLAN, J.

By section 17 of an act “To more effectually secure competent and well qualified jurors in the several counties of this State”' — -Acts 1886-7, pp. 151 to 158 — all laws then in force in relation to jurors, their drawing, selecting or qualification, not in conflict with the provisions of the act, are continued in full force and effect. The act contains no provision for the organization of juries, in the event the officers charged with the duty of drawing and selection, should fail to perform it, and hence no juries be provided for any term of the Circuit Court; nor does it contain any provision at all in conflict with section 4316 of tbe Code, which was then in force, and which provides for the organization of special juries by the court itself in the contingency referred to. That section was, therefore, not repealed by the act of 1887, and under it — no juries having been drawn and summoned by the commissioners, upon whom the duty devolved — the Circuit Court properly drew, summoned and organized the grand jury, which returned the indictment against the appellant.

The evidence in this case sufficiently establishes the corpus delicti; the asportation shown was sufficient.—Croom v. State, 71 Ala. 14; Edmonds v. State, 70 Ala. 8; Frazier v. State, 85 Ala. 17.

There was- evidence tending to connect the defendant with the commission of the offense charged. His presence sufficiently near the scene of the crime to have been the author of it, and the fact that he was provided with the means or instrument of the kind with which the act was done, appears in evidence. It further appears that he hastily left the immediate vicinity, impliedly admitted knowledge of the guilty agent, by promising to tell who it was, two days afterwards, and that in the meantime he fled the neighborhood and county. This was certainly proper to go to the jury as a basis for an inference of guilt. — Griffin v. State, 76 Ala. 29. The effect of giving the general charge requested by the defendant, would have been to exclude this evidence from the jury, and to deny to them the right to pass on its sufficiency to support conviction. This charge can never be properly given, when there is a conflict in the testimony, or when any inference against the party in whose favor it is asked may be legitimately drawn from it. There was no error in refusing the charge.—Paden v. Bellenger, 87 Ala. 575; Tabler v. Sheffield L., I. & C. Co., 87 Ala. 305.

There was no error' in the exclusion of evidence which tended to show that Lee Jackson, a third person, on whom suspicion rested in connection with the offense charged, fled the county soon after the crime was committed.—Smith v. State, 9 Ala. 990; Owensby v. State, 82 Ala. 63.

The judgment of the Circuit Court is affirmed.