Turner v. State

Supreme Court of Alabama

Turner v. State

49 So. 304, 160 Ala. 55, 1909 Ala. LEXIS 23

CourtSupreme Court of Alabama

DecidedApril 7, 1909

StatusPublished

Cited by20 cases

This text of 49 So. 304 (Turner v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Turner v. State, 49 So. 304, 160 Ala. 55, 1909 Ala. LEXIS 23 (Ala. 1909).

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Opinion

SIMPSON, J.

The appellant was convicted of the crime of murder in the second degree. While it was error to refuse to allow the defendant to challenge the juror G. S. Rhodes for cause, because of his having been on the jury which had tried another person jointly indicted with the defendant, yet it was error without injury, as the record shows that the defendant challenged said juror peremptorily, and that, when the jnry Avas formed the defendant had not exhausted his right to' peremptory challenges.

The state having examined all of its witnesses except one, who had not arrived, it was not error for the court to rule that the defendant would proceed to examine his witnesses, and to allow said state witness to be examined when he arrived. The order of the introduction of Avitnesses is within the discretion of the trial court, and this court will not revise his discretion, unless it appears that injustice has been done, to the injury of the defendant. — Drum v. Harrison, 83 Ala. 386, 3 South. 715; Dyer v. State, 88 Ala. 229, 7 South. 267; Phoenix Ins. Co. v. Moog, 78 Ala. 309, 56 Am. Rep. 31.

Charge 3, requested by the defendant, does not contain any principle of law, and the court cannot be placed in error for refusing to give it. — Dorough v. Harrington & Sons, 148 Ala. 307, 311, 312, 42 South. 557; Jefferson v. State, 110 Ala. 89, 91, 92, 20 South. 434; So. Coal & C. Co. v. Swinney, 149 Ala. 406, 409, 415, 42 South. 808.

Charge 4, requested by the defendant, was properly refused. While it is true that section 7090 of the Code of 1907 makes no mention of the absence of malice, yet it does not undertake to define manslaughter, but merely [58]*58to distinguish the different degrees of manslaughter. Reading the said section in connection with the common law, manslaughter in the first degree is the unlawful and felonious killing of another, without any malice, express or implied, by voluntarily depriving him of life. — Clarke v. State, 117 Ala, 1, 8, 28 South. 671, 67 Am. St. Rep. 157.

In addition, it may be said that the remaining part of the charge is misleading, in that the jury might be led to believe that the absence of any one of the ingredients mentioned, though all of the others existed, might reduce the offense from murder to manslaughter.

The judgment of the court is affirmed.

Dowdell, C. J., and Denson and Mayfield, JJ., concur.

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SIMPSON, J.

The appellant was convicted of the crime of murder in the second degree. While it was error to refuse to allow the defendant to challenge the juror G. S. Rhodes for cause, because of his having been on the jury which had tried another person jointly indicted with the defendant, yet it was error without injury, as the record shows that the defendant challenged said juror peremptorily, and that, when the jnry Avas formed the defendant had not exhausted his right to' peremptory challenges.

The state having examined all of its witnesses except one, who had not arrived, it was not error for the court to rule that the defendant would proceed to examine his witnesses, and to allow said state witness to be examined when he arrived. The order of the introduction of Avitnesses is within the discretion of the trial court, and this court will not revise his discretion, unless it appears that injustice has been done, to the injury of the defendant. — Drum v. Harrison, 83 Ala. 386, 3 South. 715; Dyer v. State, 88 Ala. 229, 7 South. 267; Phoenix Ins. Co. v. Moog, 78 Ala. 309, 56 Am. Rep. 31.

Charge 3, requested by the defendant, does not contain any principle of law, and the court cannot be placed in error for refusing to give it. — Dorough v. Harrington & Sons, 148 Ala. 307, 311, 312, 42 South. 557; Jefferson v. State, 110 Ala. 89, 91, 92, 20 South. 434; So. Coal & C. Co. v. Swinney, 149 Ala. 406, 409, 415, 42 South. 808.

Charge 4, requested by the defendant, was properly refused. While it is true that section 7090 of the Code of 1907 makes no mention of the absence of malice, yet it does not undertake to define manslaughter, but merely [58]*58to distinguish the different degrees of manslaughter. Reading the said section in connection with the common law, manslaughter in the first degree is the unlawful and felonious killing of another, without any malice, express or implied, by voluntarily depriving him of life. — Clarke v. State, 117 Ala, 1, 8, 28 South. 671, 67 Am. St. Rep. 157.

In addition, it may be said that the remaining part of the charge is misleading, in that the jury might be led to believe that the absence of any one of the ingredients mentioned, though all of the others existed, might reduce the offense from murder to manslaughter.

The judgment of the court is affirmed.

Dowdell, C. J., and Denson and Mayfield, JJ., concur.

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49 So. 304, 160 Ala. 55, 1909 Ala. LEXIS 23, Counsel Stack Legal Research, https://law.counselstack.com/opinion/turner-v-state-ala-1909.

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