Williams v. State

41 So. 992, 147 Ala. 10, 1906 Ala. LEXIS 255

Opinion

TYSON, J.

The indictment upon which this defendant was tried and convicted was preferred by a grand jury organized at a special term of the court after notice that the court would be held had been given in conformity to the statutes. — §§ 914 and 915 of the code of 1896. The trial was also had at that special term.

The regularity of the order convening the court is assailed in only one particular. It is upon the point that the judge of the Eighth judicial circuit, who ordered the special term, and who presided over it, was without authority to hold it because he was at that date bound to, be in attendance upon a regular session of the circuit court, in and for Madison county, which was in the some circuit with Cullman county, where this special term "was being held. It is true the statute fixing the time for holding the regular term of the Madison circuit court requires that court to convene on the third Monday in May (and may continue four weeks) which, in the year 1905, was the 15th day of that month, and it is also true that the record shows this special term to have been convened on the 22nd day of that month; but it was not shown by evidence introduced in support of the motion to quash the indictment that the Madison court did not adjourn on the Saturday, the end of the first week of its session, preceding the commencing of the special term. It will not be seriously doubted that the judge may have properly exercised the authority that he had to adjourn the Madison court, and, in the absence of a showing to the contrary, it must be presumed that he exercised that authority properly, since error must be affirmatively shown. — Smurr v. State, 105 Ind. 125, 4 N. E. 445. The same question was also attempted to be raised by pleas to which a demurrer was sustained.' But these pleas and the demurrer to them are made to appear here only in the bill of exceptions. This ruling of the court is therefore not revisable. — Beck v. West, 91 Ala. 312, 9 South. 199; Brooks v. Rogers, 101 Ala. 125, 13 South. 386, 3 BrickeH’s Dig. p. 456, § 13. But, aside from these considerations, the judge had ample authority to order the special term and hold it at the time it was held, although the Madison court may have been in session. We do not controvert the general doctrine that a court cannot be held at a time when there is clearly no authority to hold it; nor do we impugn the general rule, that it is error to hold two courts in the same circuit at the same time where there is no statutory authorization for it. To see that such authority is conferred by our statutes we need only cite them. — §§ 928 and 930 of the code of 1896; Gen. Acts 1898-99, p. 236. The legislative provisions made in these statutes for the holding of regular terms by the supernumerary judge and special judges appointed by the governor clearly recognize the authority, and, indeed, impliedly, if not expressly, confer such authority on the circuit judge to hold special terms during the session of a regular term of the court.

After a. careful examination of the evidence offered in support of and against the motion for a change of venue, we feel constrained to hold that it cannot be affirmed that the trial judge erred in denying the motion. It seems to us that the evidence in support of the applicaton is much less convincing than vans that in the Ha-wes Case, where the application was held to have been property denied (Hawes v. State, 88 Ala. 39, 7 South. 302), and does not measure up to that in the Thompson Case, 117 Ala. 67, 23 South. 676, where it was held that the application should have been granted. — Terry v. State, 120 Ala. 286, 25 South. 176; Thompson v. State, 122 Ala. 12, 26 South. 141; Daughdrill v. State, 113 Ala. 7, 21 South. 378 . The order of the presiding judge of date April 15, 1905, commanding the sheriff of Madison county to retain the custody of the defendant as a prisoner, was not a judicial ascertainment of the fact that there was danger of lawless violence to him if removed to or placed in the jail of Cullman county as against the state on the issue of fact presented by the application for a change of venue. It. was purely an ex parte order, made without a hearing on the part of the state, and therefore was not binding as a judgment. To hold that it was a judicial determination of that fact or any other fact recited in it would vitiate the cardinal principle above referred to necessary to the efficacy of every decree or judgment. And, clearly, it is no more a judicial determination of that fact than it is of the further fact also recited in it that the jail of Cullman county was insufficient for the keeping of the prisoner. — § 4961 of the code of 1896. The purpose of such orders is to protect the sheriff as an authorization to hold the prisoner and to prevent the latter’s escape or to guard him against violence to his person. The order under consideration is clearly entitled to no more weight as evidence than an affidavit containing the same statements would be. The overruling of the motion to quash the venire is not insisted on as erroneous. But, if it was, it would clearly be without merit.- — Fields v. State, 52 Ala. 348.

The trial court ivas authorized to excuse the juror Wright on account of his wife’s condition which de manded his personal attention. — Parsons v. State, 22 Ala. 50; Hawes’ Case, supra; Yarbrough v. State, 105 Ala. 43, 16 South. 758; Sanford v. State, (Ala.) 39 South. 370.

It does not require1 that a witness should be an expert on gunshot wounds in order to testify that a wound examined by him, made by a bullet, is a penetrating one. Nor is there any merit in the other objection interposed to the question propounded by the solicitor to Dr. Beard ; or in the exception reserved to the ruling on the motion to exclude that witness’ statement as to the range of the wound found by him in the head of Hipp, the deceased.— 3 Mayfield’s Dig. p. 965, § 235.

The only objection urged against the introduction of the writ of possession which Hipp, the deceased, and the deputy sheriff was attempting to execute, at the time of the homicide, is that there is no evidence in the record tending to show that the lands described in the writ are the same as those upon which the defendant resided and from which they were attempting, to eject him. It is true there was no positive or direct proof of this fact offered, but the evidence affords an inference from which the jury may have inferred it. The writ was- clearly relevant and competent. — 1 Elliott on Ev. § 212; Wharton on Homicides, § 235, p. 205; 21 Am. & Eng. Ency. Law (2d Ed.) pp. 141-144.

The matters made the basis of the twelfth, thirteenth, fourteenth, and sixteenth assignments of error, relating as they do to the conduct and declarations of defendant while at the scene of the killing with his pistol in his hand and in the presence of the deceased, being attendant circumstances, were a part of the res gestae of the occurrence or transaction that took place on that occasion, and were therefore competent without preliminary proof being made showing his declarations on that occasion to have been voluntary. — 4 Elliott on Evidence, § 3029, and cases cited in notes. But aside from this consideration, the circumstances under which they were made repel all presumption that they were not voluntarily made. — Gilmore v. State, 126 Ala. 20, 36, 37, 28 South. 595, and cases there cited. This also disposes of the fifteenth, twenty-sixth, twenty-seventh, and twenty-eighth assignments of error adversely to appellant.

Dr. Stone was shown to be an expert. He was therefore competent to express his opinion as to the place of entrance on Hipp’s head of the bullet that produced his death.

The testimony of witnesses Holmes and Byan admitted by the trial court against defendant’s objection was clearly competent. All of it related clearly to matters which were a part of the res gestae of the occurrence on the occasion of the homicide. Indeed, all the details of what occurred on that occasion were entirely competent as constituting one continuous transaction. — Collins v. State, 138 Ala. 57, 34 South. 993; Churchwell v. State, 117 Ala. 124, 23 South. 72; Smith v. State, 88 Ala. 73, 7 South. 52; Scams v. State, 84 Ala. 410, 4 South. 521.

The threats by defendant testified to by the witness Newman were clearly competent. — Jordan v. State, 79 Ala. 9; Ford v. State, 71 Ala. 385; 4 Elliott on Ev. § 3035.

The question propounded to the witness Ogletree, to which an objection was sustained, was not competent. If answered, it would not have tended to impeach Giles upon the matter laid in the predicate for his impeachment. In short, it was outside and foreign to the matter laid in the predicate. But, aside from this, the question was clearly otherwise objectionable.

There are a. number of other assignments of error, but they are so obviously without merit that we have not deemed it necessary to discuss them.

After the testimony had closed, and before the trial judge delivered his oral charge to the jury, the defendant in writing requested that he charge fully on the law of self-defense. It is also stated in the record that the judge failed in his oral charge to instruct the jury upon- the law- of self-defense. The exception reserved was to In's failure or refusal to do so. Pretermitting all discussion of the question whether, under any phase of the testimony, the defendant Avas entitled to have the jury determine that he was justified in shooting at Dunlap, Avhom Hipp accompanied for the purpose of having the possession of the premises delivered to him as the agent of the plaintiff named in the writ, and conceding that defendant was so entitled, the exception reserved is unavailable to raise the question. Had the judge instructed the jury in his oral charge or a written charge had been given at the request of the solicitor asserting that defendant Avas not justified or excused, and an exception' had been reserved to the oral charge, or if special charges had been requested by defendant raising the question of his justification or excuse and refused, then undoubtedly the lulling could be reviewed. But here Ave have a mere nondirection by the judge — a. mere failure or refusal to instruct the jury orally upon, a certain conceived phase of the testimony. This is wholly ineffectual to present for revision the question sought to be revieAved. — §§ 3326 and 3328 of the code of 1896; Herbert v. Huie, 1 Ala. 18, 34 Am. Dec. 755; Green v. State, 98 Ala. 14, 13 South. 482; 2 Thompson on Trials, § 2341. Mr. Thompson, in the section above cited, speaking to this point, says: “It is, then, a general rule of procedure, subject in this country to a feAv statutory innovations, that mere nondirection, partial or total, is not a ground of new trial, unless specific instructions, good in point of law and appropriate to the evidence, were requested and refused.”

Th court’s explanations of charges B and E Avere not improper.- — Holmes v. State, 136 Ala. 80, 84, 34 South. ; Jackson v. State, 136 Ala. 22, 34 South. 188; Nevill v. State, 133 Ala. 99, 32 South. 596.

Suffice it to say of charge C, refused defendant, that it was faulty in not postulating that the circumstances were such as to reasonably impress him, and did so impress him, that he was in great and imminent peril.— McClellan v. State, 140 Ala. 99, 103, 37 South. 239.

Charges 11, F, and G were calculated to mislead the jury, if not otherwise bad. The rule of habitation does not apply when the person killed has the lawful right to be in the dwelling of his slayer for the purpose of executing a writ of possession. The writ in this case armed those executing it with the right to the possession of ihe dwelling to eject the defendant and his household goods from it. They were in no sense trespassers, nor were they committing an unlawful act in their attempt to dispossess him and to place the owner of it in possession.— Harrigan & Thompson’s Cases on Self-Defense, pp. 713, 720, 900-904; 25 Am. & Eng. Ency. Lay (2d Ed.) p. 278.

Charge H was a duplicate of charge 4 that was given for defendant.

Charges I and K were each calculated to mislead the jury. There was testimony from which they were aithorized to find that defendant deliberately shot T-Iipp after Dunlap had begun to run.

Charge J was a mere argument. Charge L was correctly refused.; — Bowen v. State, 140 Ala. 65, 67, 37 South. 233.

Affirmed.

Weakley, C. J., and Simpson and Anderson, JJ., concur.