Daughdrill v. State , 113 Ala. 7 ( 1896 )

McCLELLAN, J.

Section 4316 of the Code provides that, if in consequence of any neglect on the part of the probate judge, sheriff, or clerk of the circuit court, or from any other cause, no grand or petit jury is returned to serve at any term of the court, the court may, by an order entered on the minutes, direct the sheriff forthwith to summon eighteen persons qualified to serve as grand jurors, and the requisite number to serve as petit jurors, and may supply the places of persons so summoned and failing to attend, &c.

By an act "to authorize the judge of the ninth judicial circuit to direct when a grand jury shall be drawn, summoned and impannclled in the circuit court of Etowah county,” approved February 21, 1893, it is provided that thereafter no grand jury should be drawn, summoned or impannelled in said circuit court, unless in the opinion of the presiding judge a grand jury should be impannelled; but that if-at any time in the opinion of the judge holding said court a grand jury should be impannelled at the next term of the court, he should make an order to that effect and cause the same to be entered on the minutes of the court, and that without such order the officers charged with that duty under the general law will not draw or summon a grand jury. This act then proceeds and concludes as follows : ‘ ‘Provided, however, that nothing in this act shall prevent the presiding judge of such court in term time to cause a grand jury to be impannelled for such court, as now provided by law in cases where no grand juries have been drawn, or in cases where the venire is quashed.’' This act without the proviso just quoted would unquestionably prevent the impannelling of a grand jury for any term of the court except upon an order male at the preceding term. The caption covers authorization to the judge to direct when a grand jury shall be drawn, &c.; section 1 of the act prohibits the impannelling of a grand jury unless the judge is of opinion one should be organized; and section 2 — if the proviso be not considered — carries authority to direct the impannelling of a grand jury at one term for the next term of the court only. So that but for the proviso there would be a positive inhibition upon the impannelling of a grand jury for that court except upon an order made at the preceding term. The proviso is clearly covered by the caption of the act; the direction of the judge toimpannel a grand jury where no grand jury has been drawn for the term being held, or the grand jury for which has been quashed, is as obviously within the purview of the caption as an order entered on the minutes at the preceding term for the im-panelling of such jury. Nor is the proviso in any sense repugnant to the body of the act, if that could be objectionable, but is entirely within the terms of the inhibition contained in the first section, limited as that inhibition is to circumstances under which the judge is not of the opinion that a grand jury should be impannelled. But it is insisted for appellant that under the general statute the circuit court has no power to impannel a grand jury at a term then being held unless officers charged with the duty of drawing and summoning such jury had failed to discharge that duty, and in consequence of such neglect of duty no grand jury bad been returned to serve at that term of tlie court, that the proviso to this special act does not enlarge the operation of the general law on this point, and that, of consequence, no grand jury can be presently ordered and impannelled by the Etowah circuit court when no order to that end had been made at the preceding term and failed of execution, because this act imposes no duty of drawing and summoning such jury on the probate judge, sheriff and clerk under these circumstances, and the absence of the'jury is not “in consequence of any neglect on the part of” said officers. For the argument, we may admit the soundness of all these propositions except the first stated, having relation to the construction of section 4316 of the Code. That section authorizes the summoning and impannelling of a grand jury at any term of the court when no grand jury has been returned for that term for any cause whatever, whether ‘ ‘in consequence of any neglect on the part of the judge of probate, sheriff, or clerk * * * or from any other cause.” It may be that in all the cases which have arisen and been brought to this court under this statute the failure of a jury was due to the neglect of the officers named, and it may not be of ready conception that such failure could under the general law result from any other cause ; but it is not impossible, we undertake to say, that a grand jury should not be returned in consequence of some cause other than the neglect of such officers. And the legislature to meet and provide for such case, gives the authority to presently summon and organize a grand jury whenever from any cause a grand jury has not been returned to serve at any term of the court; it is the absense of a grand jury, and not the particular cause of such absence, which presents the condition upon which the court may proceed to summon and impannel such jury. That is the construction which the unambiguous language of the' statute demands and enforces ; and it is the legislative construction put upon the general law by this proviso itself, which vests the judge with the power in question ■ whenever no grand jury has been drawn for any cause. The condition for the exercise of this power existed in this case ;■ no grand jury had been returned to serve at the spring term, 1896, of the Etowah circuit court; and it is of no consequence that this was so because the special law had relieved the officers charged with the duty of drawing and summoning a grand jury under the general law of the performance thereof in respect of that term of said court. The several motions, objections, &c., made by the defendant on the theory that the grand jury which returned the indictment against him was impannelled without authority of law, were properly overruled.

Upon a close examination and full consideration of the evidence adduced on the motion for a change of venue, our conclusion is that on the principles declared by this court in the case of Hawes v. State, 88 Ala. 37-wherein a stronger showing for the removal of the cause to another county than is made in the case at bar, was presented, and held to have been properly denied — the trial judge did not err in overruling the motion.

The motion to quash the special venire drawn for the trial of this cause which proceeds on the ground in effect that the sheriff failed to find and summon three of the jurors whose names appear thereon was properly overruled.-McElroy v. State, 75 Ala. 9; Jackson v. State, 76 Ala. 26. The.question is not like that discussed in Ryan v. State, 100 Ala. 106, 108, where the venire was to be made up in part of regular jurors summoned for the week, and it did not. appear but that the names of persons drawn for the regular juries, but not summoned, had been included in the list of jurors for the particular trial.

It was not essential to the validity of the order for the special term at which this case was tried that it should be entered upon the minutes of the term which was being held when the order was made. The order is that of the judge and not that of the court, and it has no place on the minutes because it happens to have been made during a term. It should be, and was in this instance, entered upon the minutes of the special term. That was essential and sufficient — Code of 1886, § 762.

The court did not err in disallowing defendant’s challenges of the jurors Shores, Hopper, Vinson and Guinn. The fact that each of these jurors believed that if what they had heard about the case was true the defendant was guilty and should be hung, afforded no ground for challenge, when each of them further deposed that they did not assume to know whether the reports they had heard were true, and that they had no fixed opinion as to defendant’s guilt or innocence which, would Mas their verdict.-Carson v. State, 50 Ala. 134; Season v. State, 72 Ala. 191, 193; Bales v. State, 63 Ala. 30.

It is no objection to a venire for the trial of a capital case at a special term that it ivas drawn more than ten days before the commencement of the term. The requirement of section 4319, that such venire should be drawn ten days before the term, is intended to secure ample time for summoning the jurors and this purpose obviously is served by drawing the names more than ten days before the court convenes. The statute, indeed, is to be read as if it had provided that the drawing should take place at least ten days, or ten days or more, before the term.

There can be no doubt that the evidence shows that Bates, the deceased, was under a sense of impending dissolution — believed that he was mortally wounded and about to die — when he charged the witness Cross with a message to his wife detailing the facts and circumstances of the difficulty in which he received the fatal hurt. That the statement he then made to Cross took the form of a message to the dying man’s wife, instead of that of a statement for the information of the witness and made directly to him, renders it none the less admissible as a dying declaration. The imminency of death supplying the place of the unction of an oath, the declaration whether made to one or another, or to one to be transmitted to another, is to be taken as evidence of the facts stated, there being the same probability of the truth of the statement in either form.

The evidence tended to show that defendant and deceased were entire strangers to each other. • Deceased was engaged in conversation with the proprietor of the saloon in which the homicide occurred, when defendant approached and interrupted them. Deceased said he and the proprietor were talking on business, and did not want to be interrupted. He told defendant to go away and let them alone. Upon this the defendant applied a very opprobrious epithet to the deceased." The latter said he would not or could not take that. Defendant said you will have to that or worse, and stepped back a few feet. Deceased advanced somewhat toward the defendant, with one arm held up in front of him and the other by his side. Thereupon defendant drew a pistol and shot deceased through the body. It seems that deceased had ceased to advance when the shot was fired. He had no arms, nor made any demonstration as if to draw or use a weapon. From this summary of the case an appreciation of the sudden and unanticipated character of the rencountre and the rapidity of the' succession of events, culminating in the fatal shot, may be had. The whole occurrence occupied only a few moments of time. Notwithstanding the spontaneity, so to say, of the difficulty, and the rapidity of action with which it progressed, it is, of course, clear that there was quite sufficient time, while it was passing, for every mental condition of murder in the first degree to have found lodgment in the mind of the slayer and co-existed there at the time the shot was fired. Yet it is a case particularly inviting to a specious use of the terms ‘ ‘with malice aforethought,” “deliberate,” “premeditated,” &c., &c.,' in rebuttal of the idea that the defendant took the life of the deceased with unlawful formed design, and one upon which the jury were especially exposed to being misled by the supposed paraphrases, synonyms or equivalents of or for the words of the statute in argument and instructions addressed to them. This is illustrated in many of the charges requested by the defendant on the trial below. The first and second instructions refused to the defendant will serve as examples of this. They are : Chai*ge 1. “Premeditation means a prior determination on the part of the defendant to take the life of Bates ; and if the jury are not satisfied from all the evidence in the case beyond all reasonable doubt, and have an abiding conviction to a moral certainty, that the defendant had a prior determination to take the life of Bates before he fired the shot, the jury can not convict him of murder in the first degree.” Charge 2. “Premeditation means to think on or revolve in the mind beforehand, and unless the jury are satisfied beyond all reasonable doubt, and have an abiding conviction to a moral certainty, from all the evidence in the case, that the defendant had time to think and revolve or turn over in his mind the probable consequences of his act before he fired the shot, and that the defendant contrived and designed previously to the firing of the shot to take the life of Bates, the jury cannot find the defendant guilty of murder in the first degree.” The manifest tendency of these charges,when referred to the evidence in the case, was to mislead the jury to the conclusion J;hat to constitute murder in the first degree the defendant should have time and opportunity to thoroughly ponder upon the act and its consequences, and resolve upon its commission before and disconnected from the act itself. This, of course, is not the deliberation and premeditation which are essential and sufficient ingredients of murder in the first degree; it is much more than the law requires. “Deliberate” and “premeditated,” as those words are used in the statute, means only this : that the slayer must intend before the blow is delivered, though it be for only an instant of time before, that he will strike at the. time he does strike, and that death will be the result of the blow; or, in other words, if the slayer had any time to think before the act, however short such time may have been, even a single moment, and did think, and he struck the blow as the result of an intention to kill, produced by this even momentary operation of the mind, and death ensued, that would be a deliberate and premeditated killing within the meaning of the statute defining murder in the first degree.-Code of 1886, § 8725; Cleveland v. State, 86 Ala. 1, 9; Lang v. State, 84 Ala. 1, 5; Mitchell v. State, 60 Ala. 26.

Charges 3, 4, 5, 6, 7, 8 and 11 are subject to the same objection pointed out to Charges 1 and 2 above, and for the same reason they were each properly refused. Charge 8 seems to embody in express terms the incorrect notion of premeditation which the jury might well have been misled to adopt by the language of the other instructions on this subject refused to the defendant. Its language is: “Unless the jury are satisfied * * * that there was a preconceived purpose on the part of the defendant at the time of the shooting of Bates to take his life, and the jury have not an abiding conviction to a moral certainty, and the evidence is not so strong and convincing as to exclude every reasonable supposition or hypothesis that the defendant, at the time of the shooting, had in MS’ mind this preconceived purpose to take the life of Bates they cannot find him guilty of murder in the first degree.” Here, obviously, the purpose to kill is expressly required to be something other than an intent formed on the instant before the killing : the defendant must have formed the purpose as something apart from its entertainment at the time of the killing, and kept it in his mind or recalled it to his mind when he was about to inflict the fatal wound. This charge would seem to be, therefore, not only piisleading, but affirmatively bad. Many of these charges are also misleading when reference is had to the evidence in their use of the words “sudden rash act.” Without defining what is meant by this phrase, they instruct the jury that if the killing was the result of a sudden rash act the defendant cannot be guilty of murder in the first degree. Now, in common parlance, the act of the defendant was sudden and rash whether it was committed with or without the formed design essential to murder in that degree, and the jury might have believed that it was deliberate and premeditated in the sense of the law, and yet have found that it was, in a sense, sudden and rash. Upon such a conclusion, the necessary tendency of these charges would have been to mislead them to an acquittal of murder in the first degree.

Moreover, charges were given by the court at the defendant’s request covering-all the matters to which the charges we have been considering were addressed, which were as favorable to the defendant as the law admitted of, and in some instances more so.

Charge 10 refused to the defendant is an efiort to add qualifications or characteristics to the intention to kill, necessary in murder in the first degree, which could tend only to confuse and mislead the jury. There is no necessity or occasion for requiring the triers of fact, when they find that a defendant had in his mind an intention, resulting from thinking upon the matter for even so brief a time, to take life, to go further into metaphysical inquisition to determine whether such intention was “clear” or was “specific.”

Charge 12 asked by defendant is abstract. There is no evidence that defendant and Bates engaged in a combat, nor that the latter assailed or attacked the former.

Charge 13 would have done violence to the doctrine that mere words, or a mere altercation can not reduce the grade of a homicide t'o manslaughter.

Charge 14 requested by the defendant is as follows : “If the jury are satisfied beyond a reasonable doubt that defendant is guilty of some one of the degrees of homicide, but the evidence leaves it in doubt whether -the offense is murder or manslaughter, then the defendant is entitled to the benefit of the doubt, and could only be convicted of manslaughter.” This charge would have authorize^ and required the jury to convict of manslaughter only though they believed beyond all reasonable doubt that he was guilty of murder. It was properly refused.

Common knowledge and the evidence in this case concur to the conclusion that a gun shot wound through the lungs and substantially through the body is, to say the least, a dangerous wound. No evidence was adduced below to the contrary. Nor was there any evidence to the effect that only ten or fifteen per cent, of persons so wounded died. Charges 15, 16, 17, 18, 23, 26 and 27 were each 'bad for that they either assume or authorize the jury to capriciously conclude that Bates’ wound was not dangerous, or that only ten or fifteen per cent, of such wounds are fatal.

It was not necessary to a conviction in this case that the wound should have been “necessarily fatal.” A defendant can not escape the penalties for an act which in point of fact produces death, because death might possi-sible have been averted by some possible mode of treatment. The true doctrine is, that where the wound is in itself dangerous to life mere erroneous treatment of it, or of the wounded man suffering from it, will afford the defendant no protection against a charge of unlawful homicide.-Parsons v. State, 21 Ala. 300; McAllister v. State, 17 Ala. 434; McDaniel v. State, 76 Ala. 1, 6; Bowles v. State, 58 Ala. 335; Russell on Crimes, (Int. ed.), pp. 35-6; Regina v. McTyre, 2 Cox. C. C. 379; Regina v. Davis, 15 Cox C. C. 174.

Charges 19 and 20 refused to the defendant were bad upon the principle just stated.

Charges 21, 24 and 25 take no account of the dangerous character of the wound. If the law were as these instructions undertake to declare it, the jury would have been authorized to acquit though the wound was inherently dangerous to life and the opiate administered to Bates was administered by a competent practitioner in good faith to save the life thus endangered by the wound.

Charge 22 is confused in its statement of the proposition probably intended to be advanced. We suppose it was intended to be asserted by this instruction that if the evidence was not sufficiently strong to exclude every reasonable hypothesis other than that the wound caused the death, defendant should be acquitted; but this is not the proposition really stated, if we understand what is said. The language used in this connection is this : “If after considering all the evidence, the jury have not an abiding conviction to a moral certainty, and the evidence is not so strong and convincing as to exclude from the minds of the jury every reasonable supposition or hypothesis, that the wound inflicted on Bates was necessarily fatal or dangerous and that Bates did not die from the effects of the wound, they can not find the defendant guilty as charged in the indictment. ’ ’ Our effort to comprehend this language has resulted in the conclusion, which, however, we do not state with absolute confidence, that its effect is to instruct the jury to acquit if the evidence failed to exclude every reasonable supposition that the wound killed Bates, and also every reasonable supposition that the wound did not kill Bates. The court very properly declined to set the jury wrestling with this confused and self-contradictory charge. Charge 27 is open to the same objection.

Charge 26 refused to the defendant has a fault which is common to most of those already considered, having reference to the cause of Bates’ death, and which is quite sufficient to condemn it and them. That fault is than an absolute acquittal is demanded if it should appear that the wound did not cause the death of Bates, though it was entirely open to the jury, had they found that the doctors and apothecaries and not the defendant killed Bates, to have convicted the defendant under this indictment of an assault with intent to murder.

With reference to all the charges as to the cause of Bates’ death refused to the defendant, it may be further said, though there is no occasion to formally so decide, that it seems to us they are wholly abstract. We are not at all inclined to think that there is any evidence in the record tending to support the theory upon which these instructions were requested, viz., that the wound inflicted by the defendant -was harmless to the life of Bates, and that he was killed by opiates administered in the treatment of the wound.

We have written upon all the points discussed in thq briefs of counsel, and upon some tliat were not. All others have been considered. And we find no error in the record. The judgment below must be affirmed.

And the day fixed bv the circuit court for the execution of the sentence of death imposed upon the defendant haying passed, it will be here ordered that said sentence be carried out and executed as required by law on Friday, the 5th day of March, 1897.

Affirmed.