Steele v. State , 83 Ala. 20 ( 1887 )

SOMEBYILLE, J.

— The defendant was convicted of murder in the first degree, for the killing of one Lou Anderson, by striking her with an axe, and was sentenced to be hung.

1. The first exception to the action of the trial court, presented by this appeal for our consideration, relates to the organization of the petit jury under the act approved February 21st, 1887, entitled “An act to more effectually secure competent and well qualified jurors in the county of Montgomery.” — -Acts 1886-7, pp. 190-197. The case being a capital one, the court had made the requisite order for- summoning a special venire of fifty jurors, in the mode required by the act. At the time appointed for the trial, it appeared that a jury could not be impanelled from those who, being summoned, had appeared; and the court proceeded, under the authority conferred by section 10 of the act, to draw from the petit-jury-box a sufficient number of names to complete the jury. This section provides, that “should any juror so drawn reside more than two miles from the court-house, the said juror may, in the discretion of the presiding judge, be relieved from attendance on said trial.” The names of several ■ jurors were drawn, and some of them were judicially ascertained to reside over the designated distance from the court-house. They were accordingly relieved, and their names laid aside. All this occurred in open court, and, therefore, presumptively in the presence of counsel. The objection, as we understand it from the bill of exceptions, is, that the court did not “specially inform” defendant’s counsel, as to the names of the persons who were thus excused within the discretion of the court. It is not shown that their names were not called sufficiently audible to have enabled counsel to hear them by proper, attention. Nor is it stated that the court was requested to inform counsel as to who such persons were; nor that it was proposed to make any issue as to the truth of the facts judicially ascertained by the court. The exception generally to the action of the court is, therefore, too vague for consideration. To put the court in error, its action should have been specially invoked, by requesting the names of the jurors who were excused, followed by a proposal to contest the fact that they resided more than two miles from the court-house.

2. We see nothing in the Qircumstances attending the confessions, as made to the witness Duncan Walters, that authorizes their exclusion from evidence on the ground that they were not voluntary. This witness states, that no threat was made, or inducement held out in any way whatever, to elicit such confessions. All that is shown to rebut this is, that the prisoner was in a closed room, with a brother of the witness, and, being asked to tell the truth, had first made a statement as to the circumstances of the killing, which might well be deemed improbable. Upon being told, however, by the witness, that' the story was impossible, and would not be credited — that physicians would be put on the stand to refute it, and that “he must tell a straighter tale than that if he hoped to be believed” — he made the confessions to the admission of which exception is taken. The only inducement, which, it seems to us, was held out to the prisoner, was simply one to tell the truth, and the only fear presented to his mind was the fear of being detected in a falsehood. This, under all the authorities, is no such inducement, through hope or fear, as would operate to exclude the confessions. — Redd v. State, 69 Ala. 255; King’s case, 40 Ala. 314; Aaron’s case, 37 Ala. 106; Whart. Cr. Ev., §§ 647, 672; Sands v. State, 80 Ala. 201.

3. The court did not err in excluding the statement of Adam Anderson, which was proposed as a whole to be admitted in evidence in behalf of the defendant. This statement related to the question of the character of the deceased, and a part of it was possibly competent, as tending to show that such character was bad for violence. But other parts of it related to specific facts, not to -general reputation; as for example, that deceased “was at one time imprisoned in the Lowndes county jail,” and “had been imprisoned in the State of Florida for assault and battery;” and these facts were not admissible. While one’s character or reputation may be assailed, by showing a general bad repute in the neighborhood of his residence, or where he is known, particular ads of bad conduct, or special circumstances of disgrace, are not admissible for such purpose on direct examination, although they often may be on cross-examination by the opposite party. — Jones v. State, 76 Ala. 9; Jackson v. State, 78 Ala. 471; 1 Greenl. Ev. (14th Ed.), § 55; Whart. Cr. Ev. (8th Ed.), §§ 58-61. The same rule would exclude the testimony of the witness Davis, who proposed to state that he “had lived several years with the deceased, and that finally he had to quit her on account of her violent disposition.”

4. The two charges requested by the defendant obviously invaded the province of the jury. It was not for the court to say what evidence was “sufficient” to establish a certain fact; nor was it within the judge’s sphere to instruct the jury that any part of the evidence was “entitled to great weight.” No exception, moreover, appears to have been taken to either of these charges.

Counsel .are mistaken in the suggestion, that the evidence contained in the record fails to show that the offense charged was committed in the county of Montgomery, and before the finding of the indictment. The record clearly discloses both of these facts.

We discover no error of any kind in the record, and the judgment is affirmed. And it appearing from the record that the day appointed for the execution of the sentence of death, imposed' by the judgment of the City Court, has passed, it is accordingly ordered and adjudged, that, on Friday, the 16th day of March, 1888, the sheriff of Montgomery county proceed to execute the sentence of the law, by hanging the said Tarleton Steele by the neck until he is dead, in obedience to the judgment and sentence of said City Court, as herein affirmed.