Smith v. State , 136 Ala. 1 ( 1902 )

McCLELLAN, C. J.

Under the facts disclosed in the transcript before us, the Jurors, O. B. Newby, R. N. Bullington, J. D. Barksdale, N. J. Tribble and W. ÍYL Barksdale belonged to and in part constituted the regular juries organ-iced for the week though they had not been dra-wn as jurors for that week, but were summoned at the time the jurors were being organized to supply the places of persons who had been drawn and for any reason had failed to appear or been excused from attendance by the court. — Code,§ 5011; Brown v. State, 128 Ala. 12, 16. These persons were, therefore, constituents of the venire for the trial of the defendant composed, as the statute requires, of the special jurors drawn under section 5004 of the Code “together with the panel of the petit jurors organized for the week,” the case having been set down and coming on for trial on a day of the week in which the order to that end was made. — 'Code, § 5005; Brown v. State, supra. The names of these men as members of the regular juries for the week, and in that capacity going to.make upi tlie venire for this case, were placed on tlie list óf jurors served on tlie defendant one entire day before the day set for the trial; and they were present at the trial for service as such jurors. The defendant so far as these jurors are concerned — and there is no complaint as to others — had for his trial the jurors whom the statutes provide he should have. Moreover, these were among the jurors provided for his trial by the order of the court, for while in the forepart of tne court’s order the regular jurors of which in part the special venire was to be composed are referred to as “the petit jurors drawn and empanelled for this week of the court,” in the after part of the order direction is given to tlie sheriff to serve a copy of the list of special jurors “together with a copy [of the list] of the regular petit jurors organized and empanelled for this week of ihe court,” (the italicization is ours) ; and from this it is clear that the word “drawn” was here employed by the court in the sense selected whether by drawing from the jury bos or by summoning by the sheriff to supply a deficiency in the regular jurors for the week. This interpretation is necessary to admit of the execution of the order in respect of putting the names “of the regular petit jurors organized and empanelled” for the week on the list to be served on the defendant; and we so construe the court’s, order. It follows that the circuit court did not err in overruling defendant’s motion to quash the special venire, nor in any other of its rulings in relation to jurors named.

As a predicate for the introduction of deceased’s dying declarations it was shown that he was shot in the body a.nd died from this wound three days afterwards, that a short time after the shooting, which occurred about ten o’clock at night, the wounded man said “he did not think he would live till morning, that he was going to die, and that he wanted to leave a statement of the facts.” He thereupon made the statements offered in evidence. The predicate was sufficient. — Cole v. State, 105 Ala. 76; Clark v. State, 105 Ala. 91; Johnson v. State, 102 Ala. 1; Bouldin v. State, 102 Ala.78; McQueen v. State, 94 Ala. 50; Johnson v. State, 47 Ala. 9, 31-32; Gerald v. State, 128 Ala. 6.

The competency of the dying- declarations of Taylor, the wounded man, as against this defendant was adjudged on the former appeal in this case. — Smith v. State, 133 Ala. 73.

On the occasion of the fatal wounding of Taylor and at the scene thereof a public supper was being served. Taylor-was in possession of the grove where the supper was being served and had rented it to the persons giving the supper for that purpose. This defendant during the evening had flourished a pistol and declared: “We are going to break this thing up;” “We are going to break up this thing to-night,” and: “We are going to break this thing up before day ; we will break it up in damn row.” When making this last remark he was talking to Prank Orr. After this Prank Orr fired his pistol. Thereupon Taylor came from his house to the place where the supper was being had, and told Orr he. must not have any fuss and must stop it, and that he must not have any shooting there. Then Orr said: “I will shoot you,” and attempted to shoot Taylor. The latter grabbed his pistol and a scuffle over it ensued between him and Orr. Then, as Taylor seemed to be getting the better of the scuffle, Orr called Pink Botts to come and shoot Taylor, saying: “He has got my pistol and I cannot shoot him.” One witness testified that this call was: “Come on hoys,” or “come on Pink, he is about to get my pistol.” Both the defendant and Botts responded -to it, and came running to the place each with a pistol in his hand. Botts was a little in advance of the defendant and got immediately up to the contending parties. A by-stander supervened between the defendant and Taylor, Orr and Botts to prevent his getting to Taylor. Whereupon the defendant, still trying to get to Taylor and when only twenty feet away from him and Bottsi and Oit, cried out in a voice loud enough for Botts to hear: “Let me get to him.” Just after this Botts shot Taylor. Undoubtedly on this evedence it was open to the jury to find that the defendant was present aiding and abetting Botts in killing Taylor. So finding, defendant’s guilt vel non, and the degree of his guilt if guilty of the homicide at all, depends upon all the facts and circumstances of the difficulty between Orr and Taylor, and of Botts’ intervention therein, since if under these facts and circumstances Orr and Botts Avere guilty of murder or any other degree of homicide so, too, and in like degree Avas the defendant guilty. Hence, it is plain that all that occurred betAveen Taylor, on the one hand, and Orr and Botts, on the other, though defendant Avas not present at the inception of the trouble, Avas pertinent and com- . petent in evidence for and against the defendant, who in legal contemplation, having, on the assumption upon Avhich Ave are now proceeding, aided and abetted in the taking of Taylor’s life,is as much and to the same extent responsible for that result as Botts Avliose hand destroyed that life. So, too, of his declaration during the evening of intention to break up the assemblage or occasion in a roAV, etc. etc. What happened Avas in line Avith these declarations, and they are to be considered as in the nature of threats tending to throAV light upon his conduct at and just before the shooting and to give the character of premeditation to the part he took by Avay of encouragement of Botts in firing the fatal shot. The court committed no error, therefore,- in overruling defendant’s several objections to the testimony we have been considering. There is no occasion to rest this conclusion on the theory that Orr, Botts and the defendant Avere conspirators, and that, of consequence, the acts and sayings of each on that evening were the acts and sayings of all so far as they might be supposed to have any bearing upon the homicide; though we are not to be understood as intimating that the rulings of the court cannot be justified on that theory also.

It is stated in the bill of exceptions that “the defon dant requested the general charge, which the court refused to give,” and that defendant excepted to this ruling. No such charge — no charge of any sort in fact— is set out in the bill of exceptions. We, therefore, cannot review this action of the court. — Donnelley v. State, 130 Ala. 132. We may remark, however, that on the evidence the defendant was not entitled to the affirmative charge Avith hypothesis, and of course not Avit-hout.

We find no error in the record, and the judgment of the 'Circuit Court must be affirmed.