Ryan v. State , 100 Ala. 105 ( 1893 )

McCLELLAN, J.

A motion was made to quash the special venire on the ground that the “list of jurors served on the defendant failed to show what persons had been summoned to serve as petit jurors for the second week of this term of the court, and the return of the’ Sheriff on the venire for the second week showed that S. E. Harris and William Madison were not found, and their names were on the list served on the defendant for the trial of this cause.” The facts thus stated in the motion were admitted to be true. The motion was denied. If it was made before the trial was entered upon it should have been granted. If made after the trial was entered upon it was properly overruled. Thomas v. State, 94 Ala. 74. The bill of exceptions does not inform us at what time with reference to the beginning of the trial the motion was made. No presumption can be indulged in that regard which would put the lower court in error. To the contrary all presumptions are against error and favorable to regularity. The bill of exceptions must be construed against the appellant where, as here, it admits of two constructions, one leading to reversal and the other to affirmance of the judgment below. Error must be affirmatively shown. It is not affirmatively shown here in that it does not appear but that the motion to quash the venire was made at a time when it was the court’s duty to deny it whether inherently meritorious or not. 1 Brick. Dig. pp. 247, 251, §§ 72a, 120 et seq; 3 Brick. Dig. p. 81, § 51; Kellar v. Taylor, 90 Ala. 289.

The evidence tended to show that defendant, deceased and others were in defendant’s room; the defendant and deceased had been drinking together and talking. One subject of conversation was the Catholic Church, and on this subject some disputation arose between defendant and the deceased. There appears also to have been something in the nature of a quarrel between the parties on some other subject. All differences between defendant and deceased were apparently amicably accommodated, whereupon there was a lull in the conversation between them and then deceased began talking to a third person in the room and after continuing this conversation, in which defendant, it seems, did not participate, for some time, he “turned to the defendant in a wild and furious manner” cursing and threatening, and finally assaulting and severely beating him ; and deceased said while beating defendant that “he would teach him how to abuse the Catholic Church.” The defendant testifying in his own behalf stated that he and deceased “got into a discussion about the Catholic Church” and he was then asked by his attorneys to state all that was said between him and the deceased in that discussion. The court sustained an objection to this proposed testimony. We do not think what was said in the conversation between the parties with reference to the Catholic Church constituted any part of the difficultypn which one of them was killed : it was not res gestae of the main transaction, the only transaction which is brought by the indictment under judicial investigation. The conversation was an appreciable time before the difficulty, and, while it may have been characterized by ill feeling between the parties, and may even have been productive of deceased’s subsequently executed purpose to assault and beat defendant, there was an interval between the two of apparent amity and good feeling. Thus separated it cannot in any just sense be said that the conversation or dispute and the fatal difficulty were one and the same, or constituted, parts of one and the same, transaction or main fact under inquiry.

The details of the previous discussion could only serve at most to show the animus with which the subsequent assault was made, or, in other words, that deceased bore ill will to the defendant and this is equally shown by the abstract fact of the former dispute or difficulty, that is the fact of the former difficulty, equally with the details of it tends to show the only thing competent to be shown in this connection, namely, the state of feeling between the parties on the part of the deceased toward the defendant. And in such case the law to the prevention of a multiplication of issues is clear that the details or .particulars of prior discussion or difficulties cannot be adduced in evidence.

The only effect of the proioosed testimony would have been to show who was at fault in the discussion or difficulty, and this was wholly an irrelevant inquiry. The subsequent assault by deceased, if he committed an assault, would in no wise be palliated or aggravated, nor would defendant’s subsequent conduct be made to appear in any different light, by any conclusion possible to reach on such inquiry; in the language of the judge below “the particulars of the discussion about the Catholic Church had nothing to do with the case.”

On the point just considered the foregoing is the opinion and conclusion of Justice Haralson and the writer. A majority of the court hold that the trial court erred in excluding the details of the conversation between defendant and deceased relative to the Catholic Church.

The custody of an alleged criminal before the trial of charg’es against him is in no sense to be considered as punishment for the offense. If it were punishment, its imposition would be violative of the organic law of the land. It is a consequence from the charge of guilt and necessary to the end that the question of guilt vel non may be determined, and upon and after such determination if against the defendant, that adequate punishment may be inflicted, but it can no more be said to be a part of the punishment itself or to be proper for consideration in fixing adequate punishment than the ills and inconveniences, the stings of remorse which a criminal who eludes arrest and absconds is subjected to can be said to be a part of his final punishment or proper to be taken into consideration in the imposition of the punishment which the law lays against the crime. The court’s rulings on this subject are free from error.

Eor the error which a majority of the court holds was committed in excluding the particulars of what was said between the defendant and deceased with reference to the Catholic Church, the judgment of the circuit court must be reversed. The cause is remanded.