Evans v. State , 109 Ala. 11 ( 1895 )

HARALSON, J.

Section 4316 of the Code provides, that if for any cause, no petit jury is summoned for any week of the term of the court, the court may, by an order entered on the minutes, direct the sheriff forthwith to summon the requisite number to servo as petit jurors, etc. Section 4306 provides for the drawing of petit jurors by the officers appointed for the purpose, for each regular term of the court, “allowing thirty persons for each week of the term prescribed by law.” Reference is manifestly made in said section 4316, touching “the requisite number to serve as petit jurors,” to the provisions of said section 4306. Under the new jury law (Acts 1886-7, p. 151, Code p. 131), section 4, the jury commissioners are required to draw the petit juries for each week of the term, “allowing not more than 36, nor less than 30 persons for each week of the term prescribed by law.” It seems that the term of the Circuit Court of said county of Cleburne had been extended by law to three weeks, since the last session of the jury commissioners of said county, the length of the term being two weeks at that time ; and no jury having been drawn for the third week, the court, by an order spread on the minutes, directed the sheriff of the county to summon forthwith twenty-four persons to serve as petit jurors during said third week of the term of said court.

It appears there is no provision made in said statute of 1886-7 for drawing a petit jury in a case such as we have before us. Section 4316 of the Code, making provision for such a contingency, was not repealed by said later jury law of 1886-7, and it was competent for the court to direct a jury to be summoned under the provisions of said section. — Kemp v. State, 89 Ala. 52. But, in requiring this to be done, the court, to avoid an irregularity, should have directed the sheriff to summon thirty, and not twenty-four, persons, as jurors for the week, as directed by said section. Why twenty-four, and not thirty, were ordered summoned, we have no information. Section 4319 of the Code provides, that when a special term is to be held for the trial of unfinished business, thirty persons must be drawn to serve as petit jurors, for each week of the term ; and when for the trial of persons charged with a felony, fifty names must be drawn, if the offense may be punished capitally, and if not, twenty-four, to serve as petit jurors. It is not unlikely, the judge treated this as a special term, and was influenced by said section, in ordering twenty-four, instead of thirty persons to be summoned. When the defendant came on to be tried, at said third week of the term of the court, he moved to quash the venire of twenty-four petit juorors. for that week, for the reason that the court had ordered twenty-four, and not less than thirty persons, to be summoned, which motion was overruled.

We find in the jury law, prior to said act of 1887, no directions, in terms given, that the judge shall organize more than two juries of twelve men each, for each week. It is provided in section 4326 of the Code that two juries are to be organized out of those drawn and summoned, the first twelve sworn to constitute jury number one, the next twelve, the second jury, and if any more are in attendance, they may be placed on a third jury. In the law of 1887,§ 9, it is directed, that out of the persons summoned as a petit jurors, and attending, the court shall organize two petit juries, of twelve men each, and if any are over, they shall be held, unless, in the opinion of the court, they may be excused for the term. So that, under this law, when not more than thirty-six nor less than thirty persons to serve as jurors are directed to be drawn for each week of the term (section 4), the court is not required to organize more than two full juries, but may excuse any over that number in attendance, if, in its opinion, they are not required for the the term. In the case before us, it appears the court organized two juries of twelve men each for the week in which defendant was tried. He had as many for his trial as if the court .had ordered summoned thirty persons, and organized out of them, if in attendance, two full juries, and had excused the others. The defendant, therefore, was not deprived of any right he would have had in the one, more than in the other case. And while there was irregularity in ordering twenty-four, instead of thirty, it does not appear to have been prejudicial to defendant. The provision for drawing more than twenty-four, under the old and new statute, was prompted, we may infer, out of motives of convenience and economy of time, that two full juries might the more readily be obtained, and not out of any supposed rights of defendants in the premises. It most frequently happens that all summoned do not. for some reason or other, always attend, and if more than twenty-four are summoned to begin with, the chances are that the juries may be the more readily secured.- There was no error in overruling defendant’s motion to quash the venire, of which he can complain.

The witness, Brooks, for the State, swore to the general character of defendant, that it was good, that he had heard that defendant had shot aman in (ieorgia, and he afterwards heard the report contradicted. The latter part of this statement was admissible as affecting the credibility of the witness. The solicitor was allowed on the re-direct examination, against a proper objection of defendant, to ask the witness: “Do you know the rumor was false?” and he answered, he did not, except from rumor. In this there was error. A witness to character, as we have repeatedly said, cannot speak of particular acts, and his knowledge of - them, or even the .course of conduct of the person inquired about, but is confined to a statement of general reputation in the neighborhood in which he lives. — Moulton v. The State, 88 Ala. 118; Thompson v. The State, 100 Ala. 70; McQueen v. The State, in MSS; Lowery v. The State, 98 Ala. 49.

The witness, Williamson, was shown to 'have staid all night at Alice Palmer’s house, at which the deceased was killed, the night of the killing. The solicitor was allowed to ask the witness : “At whose instance, if any, did you stay there, that night?” If this question tended to implicate the defendant, it is not shown he was present, when the supposed request was made ; if it did not, it was irrelevant. — Tolbert v. The State, 87 Ala. 27; Hale v. The State, 52 Ala. 9.

The witness, in addition to stating that he had spent the whole of the night at Alice Palmer’s house that night, stated that certain officers of the law came there, about 12 o’clock, and asked for admittance, and when they made known who they were, were admitted, and they arrested the witness. Defendant’s counsel asked the witness, where he was when the officers came? The court, on the objection of the solicitor, refused to let him answer the question. In this there was no error. The witness had just answered he was at the house when the officers came, and they arrested him when they entered, and that he had spent the whole night there. The court had the discretion to disallow unnecessary questions, calling for answers already explicitly made. The only object of the question, so far as is seen, was to require a repetition of an answer already made as positively as it could be done. There was no disclosure of any other purpose in propounding the question.

The evidence of the witness Napper, — allowed against defendant’s objection, — that he had shot a pistol hole through a dry plank one time, as an experiment to ascertain the size of the hole made, as compared with the size of the ball which made it, as applicable to this case, — is not distinguishable from like experiments denounced as improper and inadmissible in the case of Tensey v. The State, 77 Ala. 33, and in the more recent case of Miller v. The State, in MSS.

The witness, Owen, for the State, had testified to a conversation had between Crawford, a co-defendant, in the presence of said witness and of the defendant, in-the evening of the killing of the deceased, and a short time before, in which Crawford asked witness if he could make a fellow “break over,”, or “tear out,” or “something like that, ’ ’ and that Crawford asked witness to go with him over to the widow’s, referring, as was alleged, to Alice Palmer’s, where deceased was, for the • time, staying. When Crawford came to be examined for the defense, b.e was asked by defendant about the remarks, and he testified he did not remember them: He was asked by defendant, without objection, to state all that was said by him and Owen that evening, and the character of the conversation, and he replied : “I don’t remember all that was said. Jim Owen and I went on with our devilment, talking like we always did.” This reply was excluded on motion of the solicitor, and in this there was no error. If the question was legal, the answer was not responsive, and it was in itseif illegal evidence. If it had been responsive, and improper, as there was no objection to the question, the party against whom it was offered could not move, after he heard that the answer was against him, to exclude it. — McCalman v. The State, 96 Ala. 98.

There was no error in admitting the receipt given by Crawford to Alice Palmer. Crawford had testified, he went the night of the killing, with defendant, to Alice Palmer’s house, to see her about a mortgage her husband had given one Howie, on a cow and calf, which he, Crawford, had taken up, but that he had allowed Alice to keep the cow and calf. He further testified, that theretofore, being unable to read and write, he had asked; one Robertson to write a receipt to Alice for fifteen dol- • lars against the mortgage, which was done, and he gave it to Alice. Alice testified that Crawford had given her a receipt in full against the mortgage, and the receipt being produced, she swore it was the one given her by Crawford. The receipt showed it was for $15, paid by, Alice in full of the Howie mortgage. Crawford had sworn that he did not know whether it was the one he gave Alice or not. There was no error in allowing it to be read. It was sufficiently proved, and tended to show that the pretense of Crawford, in going to her house the night of the killing to see about the cow, was false.

The second charge asked by defendant and refused need not be considered. It had reference alone to murder. The defendant was convicted of voluntary manslaughter, which was an acquittal of murder, for which he cannot again be put on trial.

The twenty-fifth charge was properly refused. It fails to hypothesize, that the defendants were “at the time so menaced, or appeared to be so meanced, as to create a reasonable apprehension of the loss of life, or that (they) would suffer grievous bodily harm, and that there was no other reasonable mode of escape from such present impending peril,” without increasing their apparent danger. — Bain v. The State, 70 Ala. 4; Storey v. The State, 71 Ala. 337; Perry v. The State, 94 Ala. 25; Wilkins v. The State, 98 Ala. 6. The language of the charge, that “Palmer presented his gun at Crawford in such close proximity as to render retreat hazardous,” falls short of the requirements, in justifying the talcing of life.

The twenty-seventh charge was an improper request. In the case of conspirators, to render each responsible for the acts of the others, it is not necessary, in carrying it out, if a party be killed, — the fact as hypothesized in this charge, — that if one of the party did not instigate, aid or abet in any way, to do any unlawful act, in the prosecution of which the death of the party slain was not reasonably within the contemplation of the' parties, does not excuse a conspirator from criminal responsibility. Defendant might be guilty, if the party went to the Palmer house for any illegal purpose, although he neither took part in the killing, nor assented to any arrangement beforehand having for its object the death of .Palmer. If several conspire to do an unlawful act, and 1 death happens, in the prosecution of the common object, 'they are all alike guilt3T of the homicide. Each is responsible for everything done, which follows incidentally in the execution of the common purpose] as one of its probable and natural consequences, even though if was not intended, or within the reasonable contemplation of the parties, as a part of the original design. Williams v. The State, 81 Ala. 1; Gibson v. The State, 89 Ala. 122; Martin v. The State, 89 Ala. 115; Tanner v. The State, 92 Ala. 1; Jolly v. The State, 94 Ala. 19.

The thirtieth charge was a proper one, and should have been given.

The thirty-fifth charge requested was improper. It hypothesizes a conspiracy to go to a private house, without any legal excuse therefor, to take a party out of it, in the execution of which, Palmer, who was residing for the time with the family in the house, was killed, and concludes with the request, that if his killing was not. incidental to their purpose in going there, nor probably in contemplation of the parties in going, and deceased was killed by Crawford of his own malice, and not by defendant, he would not be guilty. The instruction requested in the charge is predicated upon a wrong basis, — that of an illegal purpose in going to the house of Alice Palmer. It could not be correct unless it was predicated upon a hypothesis of a lawful purpose in going there.

Charge 36 was also improper. It was not necessary for defendant to have entertained the intent to kill Palmer or do him bodily harm, to render him guilty under the indictment. If he and others went to the house with no such intent, but for' an unlawful purpose, and the killing was incidental to such purpose, as one of its probable and natural consequences, he might still be guilty.

Charge 39 was properly refused. It excluded by its terms the guilt of defendant for manslaughter, included in the indictment, and confines the jury to an acquittal altogether, if they do not find defendant guilty of murder in the second degree ; and it was also bad for the same reasons that the one numbered.36 was.

It is a sufficient condemnation of charge 45 that it confined the jury to an investigation simply of a conspiracy, and instructs them to acquit, if defendant did not aid Crawford in the killing. There was some evidence, given by Mrs: Boman especially, tending to show that defendant may have fired the shot that killed Palmer. It contains, also, the infirmity of charges 36 and 39.

The same objections to charge 39 are applicable to the one numbered 47. Besides, it refers to the jury the determination of what was a departure from the- common design.

Charge 48 limits the common design, in furtherance of which the killing took place, to a purpose which included the homicide, if necessary in carrying it out, whereas, the parties may have had an unlawful purpose in visiting the house, short of a purpose to kill any one, and yet, if in executing such unlawful purpose, the killing occurred as incidental to it, and as a probable and natural consequence of it, the parties might be guilty.

Charges 31 and 54, for the best of reasons, perhaps, are not insisted on.

For the errors pointed out, the judgment and sentence of the court below are reversed, and the cause remanded .

The verdict of the jury was, “We the jury find the defendant guilty of manslaughter in the first degree, and fix his punishment at fifteen months in the penitentiary.” The court sentenced defendant to fifteen months hard labor for the county of Cleburne for the crime, and to an additional term of ten months hard labor for the county for the costs of the prosecution.. Section 3733 of the Code provides, that on a conviction for manslaughter in the first degree, the punishment, atthe discretion of the jury, must be in the penitentiary for not less than one nor more than ten years. That section, as we have held, was modified by Section 4492, later enacted, where it is provided, that “in all cases in which the period of imprisonment in the penitentiary, or hard labor for the county, is more than two years, the judge must sentence the party to imprisonment in the penitentiary, and in all cases of conviction for felonies, in which such imprisonment for hard labor is for more than twelve months, and not more than two years, the judge may sentence the party to imprisonment in the penitentiary, or confinement in the county jail, or to hard labor for the county, at his discretion, any other section of the Code to the contrary notwithstanding. And in all cases in which the imprisonment or sentence to hard labor is twelve months, or less, the party must be sentenced to imprisonment in the county jail, or to hard labor for the county.” As was said in Gunter’s Case, 83 Ala. 102, “the law itself thus grades the senténce, and the place and nature of the punishment in all cases, according to the number of years of imprisonment assessed by the jury, where the period is over two years (as in that case), or is twelve months or less. The discretion of the jury, whether in convictions for manslaughter or other offenses , in such cases, has no room to assert itself in controlling or regulating the place or nature of the punishment, as being in the penitentiary or elsewhere. Such discretion is exhausted in fixing the time, or number of years for which the punishment is to continue. — Zaner v. The State, 90 Ala. 651; Henderson v. The State, 98 Ala. 37; Ex-parte Brown, 102 Ala. 179. Under these statutes, then, the judge had the discretion under this verdict,— the imprisonment fixed by - the verdict being for more than one and less than two years — to sentence the defendant to fifteen months — the period of imprisonment fixed by the jufy — to hard labor for the county. Then follows Section 4504 of the Code, which provides, “If on conviction, judgment is rendered against the accused that he perform hard labor for the county, and if the costs are not presently paid, or judgment confessed therefor, as provided by law, then the court may impose additional hard labor for the county for such period, not to exceed eight months, in cases of misdemeanor, and fifteen months in cases of felony, as may be sufficient to pay the costs, at a rate not less than thirty cents per diem, for each day,” etc. Judgment was rendered against the accused in this case, that he perform hard labor for the county for fifteen months for the crime, and to an additional term of ten months for the costs. This sentence was not unauthorized if it did not exceed the amount of the costs properly taxable against defendant. It specified the exact duration, and we presume it was correct. The traxrscript does not show that the bill of costs includes any for the payment of which the defendant can not be legally imprisoned. — Croom’s Case, 71 Ala. 14; Bradley’s Case, 69 Ala. 318. It must be said, however, that while we have sanctioned such judgments, the better practice, as we have heretofore indicated, and which ought to be followed is, that the judgment ought to specify the precise amount of the costs, and the number of days the defendant is to serve to pay them, and the sum allowed for each day’s service.— Walker’s Case, 58 Ala. 395.

Reversed and remanded.