Goodwin v. State , 102 Ala. 87 ( 1893 )

HARALSON, J.

1. On the day set for the trial of this cause, the names of the 100 persons allowed and summoned for the trial, were placed in a hat, and the drawing proceeded under the direction of the court, and according to the terms of the statute, (Acts 1884-85, p. 539) , until the name of Francisco Gomez, Jr., was called, when one Francisco Gomez appeared in person, who being sworn, stated that he was seventy years old; that he was not Francisco Gomez, Jr.; his son bore that name, and lived in Mobile county. The old man claimed his exemption for over age, which was allowed by the court. The copy of the venire that had been served on defendant, contained the name of Francisco Gomez, Jr. The defendant then moved to quash the venire, which motion the court, denied, and ordered the sheriff to summon Francisco Gomez, Jr., instanter, and stopped the proceedings till said Gomez, Jr., appeared in court. He was challenged peremptorily by the State.

The defendant excepted to the refusal <‘*f the court to quash the venire, and also excepted to ■ ■ «■ court ordering the sheriff to go out and summons .'d Francisco Gomez, Jr. It seemed to be difficult to satisfy the defendant. He moved to quash the venire, because Gomez, Jr., was not present, and had not been served, and when the court took the time and trouble and had him brought in, he objected to this procedure. The court, -by its action, put defendant in the same position exactly, as to this juror, that he would have occupied, if he had been served in the first instance, and had been present in court. It was not shown that there was any other Francisco Gomez, Jr., in the county, and the presumption is, that this was the man whose name was drawn from the jury box by the court, and served on defendant, as one of the special venire for his trial. There was no error ' in the rulings as to this matter. — Code, § 4322.

2. The drawing proceeded, as before, until a slip containing the name of Thomas McDonald, Jr., was drawn, and in response to the call, a man appeared, who being duly examined, said his name was Thomas McDonald ; that he lived in Mobile county and had been summoned for the week; that there was another family in Mobile county by the name of McDonald, of kin to him, in which there were two Thomas McDonalds — father and son — but he did not know whether the son was called McDonald, Jr., or not. It is stated in the bill of exceptions, that ‘£ the slip of paper drawn from the hat by the sheriff, had on it, ‘Thomas McDonald, Jr., Go.,’ the latter affix standing for county. The venire returned by the jury commissioners for Mobile county to the clerk of the court had on it, ‘Thomas McDonald, Go.’, and the copy served on the defendant, had on it, ‘Thomas McDonald, county. ’ The sheriff'Stated that the man, Thomas McDonald, who had appeared in answer to the-call, was the man whom he had summoned as a juror, and, that he was on the regular jury for the week.”

The special jury law of Mobile county provides, that the jury commissioners shall draw thirty-six names from the “city court jury box,” and these shall be recorded as the petit jurors for the first jury week of the next term of the city court, and that the slips which havq been drawn, “shall be delivered to the clerk of the city-court, who shall carefully preserve the same until the meeting of said court.” It is made the duty of the clerk to direct, at once, to the sheriff, a writ commanding him to summons the persons drawn as petit jurors, and named in the writ to appear as such. On the trial of a person charged in said court with the commission of a capital offense, it is provided, that the judge — when he has made his order fixing the day of trial and the number of special jurors allowed defendant for his trial— shall direct the clerk to draw from the jury box, in open court, the number of additional jurors specified in such order, and as the names of such jurors are drawn, they are to be entered on the minutes of the court, “and the slips so drawn shall be preserved by the clerk in a separate package until disposed of as directed.” On the day of trial, “the slips containing the names of the reg•ular jurors drawn for the week in which such trial is set — (which have been returned to the clerk by the jury commissioners who drew them from the box) — together with the slips containing the names of the additional jurors drawn under the direction of the court, shall be folded or rolled up and placed in a box, or some substitute therefor and shaken together, and such officer as may be designated by the court, must, in the presence of the court, draw out such slips, one by one, until the j ury is completed. ”

The bill of exceptions in addition to the statements above recited, taken from it, contains this further statement as to the drawing of the jury in this case, viz. : ‘ ‘The court ordered the sheriff to proceed with the call of the venire drawn for the trial of this cause, and thereupon the sheriff put into a hat, the small slips of paper which had been drawn by the jury commissioners for Mobile county, and each of which slips of paper contained the name of a juror written thereon, and proceeded with the call of said venire by drawing from said hat one of said slips of paper at a time with the name of a juror thereon,” until the names of Gomez, Jr., and Thomas McDonald, Jr., were called.

The word “Junior,” or “Jr.”, it has been held, is 40 part of the name of a person who uses it as an affix to his name, but is ordinarily a mere description of the person. The word means, younger, later born, later in office or rank. And where two reside in the same place, and one uses the addition, Jr., they will be presumed to be father and son. — 16 Amer. & Eng. Encyc. of Law, 121.

The statute under construction seems to require that the persons whose names are drawn from the jury box, whether by the commissioners, or under the direction of the court, shall be the very persons to whom the defendant in a capital case is entitled, from whom to select a jury. The particularity with which the identical slips drawn from the jury box are to be preserved by the clerk, to be used in the drawing of the jury, in addition to the terms of the statute itself, leaves us no room to doubt on this point. It was not intended that the prisoner should be subject, as to this matter, to the discretion or the mistakes of the officers entrusted with the execution of the law. As we have seen, the bill of exceptions states positively, “that the sheriff put into a hat the small slips .of paper which had been drawn by the jury commissioners,” from the jury box. It is certain, therefore, that a man by the name of Thomas McDonald, with the affix of Jr., was drawn by the commissioners from said box, was returned by them to the clerk, and was placed by the sheriff in the hat and was drawn out by him ; and that a mistake was made by the commissioners in copying their list from the slips to be returned to the court, or else, the clerk made the mistake in copying the writ for the sheriff; but, however it may have occurred, it is equally certain, that the Thomas McDonald, to whom the defendant was entitled, was not the one on the venire and who responded to the call of Thomas McDonald, Jr. The defendant objected to having said juror put upon him, but his objection was overruled and he excepted. The ruling of the court was erroneous.

3. There was no merit in the objections to the testimony of the witnesses — ^-Busby and Dorian — that Busby, who saw the shooting, pointed 'out to Dorian the places where the de-, ceased and defendant were standing, at the time of 'the shooting, and that Dorian measured and testified to the distance between the two points. The relative positions of the parties at the time one shoots and kills the other, is always competent, and the method pursued to prove it in this case was free from objection. Bttsby’s evidence was for the purpose of identifying two points, the distance between which; important to know, had been measured' by Dorian. — Green v. State, 96 Ala. 29.

4. The defendant put his character for peace and quiet in issue, and it was permissible for the State, on cross-examination, to ask the witnesses who testified in favor of defendant, on that issue, if they had not heard of specific acts of violence on the part of the defendant.— Ingram v. The State, 67 Ala. 67; DeArman v. The State, 71 Ala. 351; Hussey v. The State, 87 Ala. 121; Moulton v. The State, 88 Ala. 116; Thompson v. The State, 100 Ala. 70.

5. The defendant, after he had shot deceased, ■ surrendered himself at the j ail of Mobile county. He testified, that the jailor carried him into the hall of the jail, and one of the deputies started away with him, when the jailor called, and told the deputy to bring him into, the office, and there, the jailor interrogated him about the difficulty, and told him it would be better, for him to tell all about it. Rube Dorian, for the State, testified that he was present when defendant surrendered himself to the jailor, and went with them into the office, but was-not present all the while the jailor had the defendant in the office,'but while present he never heard the jailor, or any one else tell the defendant, it would be better for him to tell all about it, or that it would be worse for him, if he did not; and no threats or promises were made, and what he stated, was voluntarily said. The jailor testified, also, that he did not tell him that it would be better or worse for him if he did or did not tell about the killing, that he did not threaten him or make him any promises, but all ‘he said was voluntary. Both these witnesses testified to the confession as made, — that defendant stated he had had a difficulty with Pool on the day before the killing, and that he had shot him, “so he could get away, and because he said he was going to kill him, and he wanted to be as good as his - word.” The confession to these witnesses was admitted by the court, against the objection and exception of- the defendant. He also confessed to Dr. Inge, the county physician, who testified that he did so voluntarily, without the influence of threats or pi'omises. The confession was in substance, that he had had a difficulty with Pool the day before he shot him, about a difference between them ' as to defendant’s account; that Pool took his pistol and rati’ him out of the house ; that the more he thought of it, the: madder he got, and that after he shot him his ' first thought was to run away, but he thought it would be no' use, "as Mr. Dorian would catch him, so he came and gave himself up. These confessions were properly admitted. Maull v. The State, 95 Ala. 1.

6. Charge 3 requested by defendant was properly refused. The admissibility of confessions is for the court, their credibility for the jury. When confessions are admitted on controverted questions of fact, this court will not revise the rulings of the lower court, admitting them unless they appear to be manifestly wrong. — Bonner v. The State, 55 Ala. 242. And, when such confessions are admitted, if the jury, from all the circumstances, are not satisfied they were voluntarily and intelligently made, it is their province and duty to reject them ' as entitled to no weight in passing on the question of the guilt or innocence of the accused.— Young v. The State, 68 Ala. 570. The fourth, is vicious for a like reason, and because it is abstract. There is no evidence that there were any threats made to induce the confessions.

7. . The refusal of the court to give charge numbered 39 is assigned as error. It seems to be a copy of one refused in the case of Keith v. The State, 97 Ala. 32, which was there held to be a proper one, and its refusal error; We have other and some later adjudications, however; which make that an erroneous ruling. There was'ho’ error in the refusal of the court to give said charge. Sullivan v. The State, infra; Holmes v. The State, 100 Ala. 80; Webb v. The State, 100 Ala. 47; Gibson v. The State, 89 Ala. 121.

8. The remaining charges asked and refused ignored the duty of retreat, and all inquiry into the question of freedom of defendant from fault; and 6th - and 7th are" subject to the further infirmity.of ignoring the existence 1 of reasonable grounds for believing, and that defendant did believe, he was in peril of life or great bodily harm, when he shot deceased. — Cribbs v. The State, 86 Ala. 613; Rutledge v The State, 88 Ala. 85; Gibson v. The State, 79 Ala. 121; Gotten v. The State, 91 Ala. 106; Davis v. The State, 92 Ala. 20; Perry v. The State, 94 Ala. 25; Wilkins v. The State, 13 So. Rep. 312.

For the error in putting the juror, McDonald, on the pLefendant, and not excluding him from the venire, the judgment of the court below must be reversed.

Reversed and remanded.

COLEMAN, J.

—It might be inferred from the opinion in this case, that the charge requested, and which apparently was copied from the Keith Case was inherently vicious. The case of Jones v. The State, 76 Ala. 8, was reversed because of error in refusing a charge, in which the question of retreat was ignored, and the case of Christian v. The State, 96 Ala. 89, was reversed for refusing to give a‘ similar charge. The principle of law involved and upon which the court proceeded in reversing these cases was fully recognized in the cases of Lee v. The State, 92 Ala. 15; Harris v. The State, 96 Ala. 24. It would be error to refuse such a charge when the facts and circumstances affimatively showed that no duty to rotreat devolved upon the slayer, as where the party assaulted ‘ 'was in his own house, or within the curtilage or space usually occupied and used for the purpose of the house,” or in some cases of felonious assault. Where these conditions do not exist, and the defendant relies upon the lavy of self-defense a charge which ignores the doctrine of retreat should be refused. As was said in the case of Holmes v. The State, 100 Ala. 80, “there can not be a necessity to kill, where there is a safe way to retreat open to the slayer, available by the exercise of reasonable prudence. ’ ’ The statement of the facts in the Keith Case, reported in 97 Ala. 32, do not show that the assailant was excused from the duty to retreat; and under the facts, and the foregoing principles, the court did not err in refusing charge No. 2. The case of Keith was properly reversed for refusing to give charge number one, which charge contained every element of the doctrine of self-defense. From the brief consideration given to charge No. 2,.in the opinion, and the authorities cited, it.would seem that the only question raised by this charge, considered by the court, was whether the danger inust-be real, or whether “it is sufficient if the apparent danger is such as to create in the mind of a reasonable man a’ just apprehension of imminent danger to , life or limb.’ ’ I have felt justified in saying this much, to preyent any misunderstanding of the debision in this case and in the Keith Case.