Prater v. State , 107 Ala. 26 ( 1894 )

McCLFLLAN, J.

The appellant was convicted under an indictment charging him with burning the dwelling-house Of Howard Irwin, in which there was at the time a human being. The defendant moved for a change of venue and also to quash the special venire for his trial, on the ground that said Irwin was one of the jury commissioners of Lawrence county, and as such charged with the duty of drawing grand and petit jurors, &c. Leaving other considerations out.of view, it will suffice to say, in sustaining the trial court’s action in overruling these motions, that it does not appear from the averments of either of said motions that Irwin exercised his powers and discharged his duties as a member of the jury commission with any reference whatever to this prosecution of the defendant, nor indeed is it averred as matter of fact that he even participated with the other members of the board in filling the jury box from which the grand jurors who returned this indictment and the petit jurors who tried this cause were subsequently drawn, or in drawing therefrom either the grand or petit jurors.

There is no merit in the exception reserved in respect of the special juror, T. S. Craig. This defendant was not entitled to have this juror while he was engaged in hearing another capital case for which also he had been specially drawn. — Cole v. State, 16 So. Rep. 762. And, moreover, the other case having been concluded while the jury was being made up in this one, Craig was accepted by the prosecution and defense and actually served throughout the trial as a. juror in this case.

The several exceptions to testimony with reference to posting gin houses are without merit. . It was shown that Irwin, the prosecutor here, was active in ferreting out parties called “white caps” and so calling themselves, -who had posted notices on the gin houses of W. T. Simmons and others to the effect that they would burn down the houses if any cotton was ginned before the price reached ten cents per pound. The defendant admitted having thus posted Simmons’ gin house. It was shown that he knew of Irwin’s efforts against these “white caps” and of the latter’s suspicion that he was one of them. And in this connection, and with reference to the part Irwin was taking in the matter, it was shown that the defendant declared his purpose to burn Irwin’s house. All the testimony adduced on this subject went, therefore, directly to show a motive on the part of the defendant to commit the crime for which he was being tried, and was properly admitted.

The court did not err in allowing the witness Young to testify to the good character of the witness Prewett in the neighborhood in which both witnesses lived, and m which young continued to live, though the latter further testified that Prewett at the time of the trial lived six miles from him and he did not know what his character was in the neighborhood of his present residence. — Sorrelle v. Craig, 9 Ala. 534, 541; Martin’s Extr. v. Martin, 25 Ala. 201; Dupree v. State, 33 Ala. 380.

The instructions given at the instance of the State are 'so manifestly correct as not to require discussion.

Of the charges refused to the defendant those numbered 1 and 2 are abstract in one respect, at least; and, for this if not also for other reasons, they were properly refused. They each assume that the evidence raises an issue as to whether certain declarations or admissions, or confessions of the defendant were voluntary and freely made, without the persuasion of hope or the duress of fear, when in point of fact no such issue arose in the case ; and the court very properly refused to submit it to the jury.

Charge 3 was well refused to the defendant for that its tendency was to lead the jury to a capricious disregard of all Prewett’s testimony if they found he had testified falsely as to any material fact, and this though the witness may not have willfully testified as to any material fact.

Charge 4 refused to the defendant is not open, we think, to the objection leveled against that numbered 3. It is not abstract or argumentative; b.ut asserts simply that if the evidence convinces the jury that the witness Prewett is a man of bad character and unworthy of belief they are authorized to disregard his evidence altogether. The jury certainly had this right on the hypothesis of this charge, and they should have been so instructed.

Oharge 5 of defendant’s series was properly refused.

For the error committed in refusing charge 4, the judgment must be reversed. The cause is remanded.