Taylor v. State

48 Ala. 180

• Court: Supreme Court of Alabama
• Decided: June 15, 1872
• Status: Published

Opinion

PETEBS, J.

This is an indictment for murder in the first degree, in the city court of Mobile, tried at a special term of said court, in the year 1872, The appellant, said Solomon Taylor, was found guilty, and sentenced to confinement in the penitentiary for life. From this conviction he appeals to this court.

The motion to quash the venire is the- same in effect with that made In the ease of Sam. Levy v. The State, (decided at the present term.) We see no reason to depart from the construction of our statutes, upon the organization of petit juries returned to the special term of the city court of Mobile, laid down in that case. It is therefore adhered to and re-affirmed. — Sam. Levy v. The State, (at present term.)

I am unable to discover error in the action of the court below, in the refusal of the application to change the venue of the trial Whether the facts upon which the place of trial was sought to be changed existed or not was a question for the court, upon the proofs submitted on both sides. The preponderance of the 'evidence is strongly against the accused. ‘ The form of the affidavits against the application, though somewhat -unusual, is not a form forbidden by law. It is open as well to the defendant as to the State. I am not familiar with any principle of law or practice which vitiates an affidavit because it is sworn and signed by more than one person. As many persons as choose to do so, may swear in the identical same words and verify their oaths by their signatures, and whether the oath is written on one or many pieees of paper, makes no difference. Such an affidavit made before a notary public in this State is sufficient. Under our law a notary public is a justice of the peace, and as such he may administer an oath. — Const. Ala. Art. VI, § 13; Eev. Code, § 841, 1083,4206; Ex parte Chase, 45 Ala. 303. One of the series of affidavits offered by the prosecution is signed by twenty-seven persons, and it is sworn and subscribed before a “ notary public and ex-officio justice of the peace,” and it is so certified by that officer to the court. This is sufficient. There was no error in refusing the motion to reject it.

The motion to hear oral testimony on the application for a change of venue was unusual. There is no mode of procedure fixed by the statute, but the mode of proof by affidavit is the customary practice, and it is that indicated in Ex parte Chase, (43 Ala. 303, 312.) It was also the practice in like cases at common law. — 3 Bla. Com. p. 304; Motions and Affidavits, 3 Ohitt, Gen’l Pr. p. 571, et seq. ; Motions, 1 Tidd’s Pr. 478, et seq.; 11 Bouv. Law Dict. p. 199; Motion, and authorities there cited. The court, then, did not err in rejecting the oral testimony.

In the selection of the jury on the trial below, the defendant complained that the name of one of the jurors in. the list delivered to him was mitten “J. E. W. King.” There had been an effort to rub out the J. The true name was E. W. King. The court, upon inspection, decided that the name of “E. W. King was plainly written ” on the list of jurors delivered to the defendant, and upon this inspection the motion to strike out the name of King was refused. To this the defendant excepted. There was nothing wrong in this refusal. The court is the only judge in such a case, and unless the proofs show that it was perversely mistaken, his judgment is final. There is nothing in the 'record showing that its judgment was incorrect. There was, then, no error in the refusal complained of.

I have carefully examined the charges of the court on the trial below, both those given and excepted to, and those asked and refused, and I am unable to detect any error in either. The charges which are given, and. those that are asked by the defendant, must always be referred to the offense alleged in the indictment, and the evidence by which it is intended to be supported or denied. Otherwise, they are hable to transcend the limits of the issue and become separated from it. Such charges are abstract. They are too broad or too narrow for the issue or the proofs. The offense, in this case is a felonious homicide. There was no evidence tending to show that it had been committed in necessary self-defense. The assault was altogether on the side of the slayer. He was the assailant, not the person assailed. His resort to his gun was for redress and not for self-defense. One may prevent an injury from being done, by all proper means; but when done he may not take redress in his own hands. — Walker’s Amer. Law, p. 210, § 87, 5 Ed. No words, however insulting, will excuse a homicide, nor will an assault which has been occasioned by the slayer. There must be peril to life or limb, or reasonable ground to suppose that such peril exists, before life can be taken under the excuse of self-defense. — Oliver v. The State, 17 Ala. 597; 1 Russ. on Cr. p. 669; Whart. Amer. Law of Homicide, p. 168, et seq. Evidence of opprobrious words or abusive language, used by the person assaulted, is good in extenuation or justification only when the indictment is for assault, assault and battery, or affray. — Rev. Code, § 4198. It is not permissible on the trial of an indictment for an offense of a higher grade. Here, the deceased and the defendant had been engaged in playing a game of cards. The defendant accused the deceased of “stealing a card from the deck” and giving it to his opponent; one 'White. ' This charge was rudely denied by the deceased, and the denial repeated by calling the defendant “a damned liar.” After this, the defendant quit the room in which the gaming and altercation had taken place, and soon returned with a doublebarrelled gun and shot the deceased in the head, which occasioned his death within an hour after the infliction of the wound. Under such a state of the proof there was no grounds for the plea of self-defense, or such an extenuation of the crime as to reduce it from the grade of murder in the first degree to manslaughter. The court did not, then, err in the charges given, which ignored the plea of self-defense, nor in refusing the charges which sought to reduce the crime from murder in the first degree to manslaughter. The charges asked were not supported by the evidence. They were abstract, and properly refused.

Note by Eeporter. — At a subsequent day of the term the appellant filed an application for rehearing, which did not come into the Eeporter’s hands. It was responded to as follows : PETEES, J. — This is an application for rehearing. The ground is, as I understand the petition, the failure of this court to notice the second application for a change of venue, as shown in the record.

The judgment of the court below is therefore affirmed, and that court will proceed to execute its sentence according to law.

The record shows that there was one application for change of venue, founded on affidavits in support of the motion in the usual form. This was heard and refused, and the refusal excepted to. This refusal was approved by this court. But after this refusal and exception, the record goes on immediately to recite as follows, to-wit “ The defendant then afterwards offered another and additional application for a change of venue containing allegations entirely different from those in the first application, which the court refused to hear, to receive or to consider. To which ruling the defendant excepted.” This is all that is said in the record upon this subject. This does not show such an application as the court was bound to notice. A mere reading of the Code will show this. I quote the statute. It is in these words: “Any person, charged with an indictable offense, may have his trial removed to another county, on making application to the court, setting forth specifically the reasons why he can not have a fair and impartial trial in the county in which the indictment is found, which application must he sworn to hy him.” — Rev. Code, § 4206. This is the rule. And it must appear from the record that it has been complied with, before the court below can be presumed to have been in error. The above application does not show that the above requirements of the law were complied with. A mere application is not enough. It must set forth the reasons required by the statute, and must be sworn to by the person charged, else the court is not bound to entertain it. Nothing is intended to be said in this opinion as to the right of the defendant to make a second application, at the same term of the court at which the first has been refused. This question is wholly pretermitted. It is only intended to point out, in this opinion, what is required by law in the first application, to fix error upon the court for a refusal to consider it and decide upon it. The rehearing is denied with costs.