King v. State

89 Ala. 146

Opinion

SOMERVILLE, J.

We are all of one opinion, that the juror Quattlebaum, under the principles laid down in Long v. The State, 86 Ala. 36, was not a qualified juror, on the ground that he had formed a fixed opinion as to the guilt or innocence of the defendant, which would bias his verdict. Code, 1886, § 4331. He had heard the evidence on a previous investigation, or trial, and admitted in his direct examination on voir dire, that he thought “the evidence would have to be very strong to change his opinion;” and again, that “it would be a pretty hard matter to set aside the evidence he had based his opinion on.” The assertion that he had not made up his mind, as to the “classification of the killing,” was, moreover, an implied re-affirmation of the fact that he had formed an opinion as to all other issues involved. The cross-examination does not, in our judgment, remove the disqualification thus made to appear, especially if the evidence upon the trial should be substantially the same as that heard by the juror on the former trial. For the error of refusing to sustain the challenge to this juror, the judgment must be reversed.

The court committed no error in excluding the testimony of the witness Harney, in reference to the threat alleged to have been made by Popham. We can see nothing in the evidence justifying the inference that it was capable of being so construed as to have any reference to the defendant. If he had killed King in the rencounter with him, instead of being killed, this threat would not have been competent evidence against him, on an indictment for murder. No more is it admissible in the present case.—Redd v. State, 68 Ala. 492; Jones v. State, 76 Ala. 8; Ford v. State, 71 Ala. 386; Harrison v. State, 79 Ala. 29.

, The rules of evidence bearing on the question of proving character, both on the direct and cross-examinations, are fully discussed in Moulton v. The State, 88 Ala. 116, and a proper application of the principles settled in that case will avoid all difficulties touching this branch of the case on another trial. See, also, Morgan v. State, 88 Ala. 223.

We think the court did not err in declining to take from the jury all inquiry as to whether the defendant was reasonably free from fault in having brought on the difficulty, however strongly the evidence may tend to establish this fact. The conversation between defendant and the deceased, according to the version of one or more witnesses at least, is reasonably susceptible of the construction, that the defendant impliedly intimated that deceased was disposed to steal his money, when he put his hand upon it at the gaming table.

The questions raised by the other charges have been discussed by us sufficiently in our past decisions; and are deemed to be too well settled for further agitation.

Tbe judgment is reversed, and tbe cause remanded. In tbe meanwhile tbe defendant will be retained in custody, until discharged by due process of law.