Linehan v. State , 113 Ala. 70 ( 1896 )

HARALSON, J.

1. Section 4445 of the Code provides that “no objection can be taken to an indictment, by plea in abatement, or otherwise, on the ground that any member of the grand jury was not legally qualified, or that the grand jurors were not legally drawn or summoned, or on any other ground, going to the formation of the grand jury, except that the jurors were not drawn in the presence of the officers designated by law.”

The plea made in this case to abate the indictment was-for.reasons other than that the grand jury was not drawn in the presence of the officers designated by law, and is based on reasons in direct opposition to the provisions of this section of the Code. There is no ground for the plea if that section of the Code has not been repealed, but is still of force and effect. Section 17 of the act of February 28, 1887, (Cr. Code, pp. 131-135), provides, that “all laws, general and special, conflicting with the provisions of this act be, and the same are, hereby repealed; but all laws now in force in relation to jurors, their drawing, selection and qualification not in conflict with this act, are hereby continued in full force and effect.” Said section 4445 has been frequently recognized by this court as unrepealed and still of force and effect.-Tanner v. The State, 92 Ala. 1; Davis v. The State, 92 Ala. 24; Welsh v. The State, 96 Ala. 92; Germolgez v. The State, 99 Ala. 216; Sampson v. The State, 107 Ala. 76. Our uniform ruling has been to disallow all defenses, save one, which rest on irregularity in the drawing and impannelling of grand juries, except the statutory ground that they “were not drawn in thepresence of the officers designated bylaw;” and the additional exception is, that there is some order of the court, or some action of the presiding judge, appearing of record, and relating to the organization of the grand jury, which is without warrant in the statute, or is contrary to its provisions.-Billingslea v. The State, 68 Ala. 486; Murphy v. The State, 86 Ala. 46.

In the last case cited, it was said, StoNE, C. J., speaking for the courts “We have several times held, that the later statutes regulating the drawing and impannelling of juries have not repealed section 4445, Code of 1886, section 4889, Code of 1876.” In that case, the objections to the organization of the grand jury, were substantially the same as those here urged, by plea in abatement, to the proper and legal organization of the grand jury in this case, and the court held, that under the provisions of said section 4445 of the Code, which were still of force, the court did not err in overruling the motion to quash the venire.

The cases relied on by the appellant in support of the motion,-Steele v. The State, 111 Ala. 32; Johnson v. The State, 102 Ala. 1; Wells v. The State, 94 Ala. 1,-all related to the drawing and impannelling of petit juries. Section 4445 relates alone to the grand and not petit juries, and there is no provision in our law as to petit juries, touching their drawing and formation, such as is made in said section in reference to grand juries. If such provision had been made, the drawing and formation of the petit jury would stand, necessarily, on the same footing with the grand jury. The demurrer to the plea in abatement was properly sustained.

2. The defendant was arraigned in open court, and pleaded not guilty, on the 25th of August, 1896, and Tuesday, the first day of September, following, was set for the trial of the cause. The court, at that time, drew" from the jury box of the county the-names of thirty persons, as special jurors for the trial of the cause, a list of 'whom was made out by the clerk, and the sheriff was ordered to summon them to appear on the day set for the trial. The'sheriff was also ordered to serve on the defendant, at least one entire day before tbe day set for the trial, a copy of the indictment, and a list of the jurors drawn and summoned for that, the third week of the term, together with a list of the said thirty special jurors drawn for the trial of defendant.

On Monday, the 31st of August, 1896, the sheriff made his return, in open court, of the venire of petit jurors which had been drawn, for the third week of court, and whom he had been ordered to summon for that week. The defendant being in open court on that day, moved the court to quash the regular venire,.drawn and summoned for that, the third week of the term, and, as is recited in the minute entry, ‘ ‘having introduced evidence in support of said motion, showing that said venire had not been drawn according to law, it was considered by the court that said motion be sustained, and said venire was quashed;” and the “cause was continued to Wednesday, the 2nd day of September, 1896.” It had, theretofore, on the 25th of August been set for trial on Tuesday, the 1st of September. The sheriff was then, on Monday, at the time said venire of petit jurors for the third week of the term was quashed, ordered by the court — employing the language of the order — “to summon from the qualified citizens of said county at large, thirty-six persons to serve as jurors under section 4327 of the Code, to form three entire juries for this the third week of the present term of courtand thereupon the sheriff immediately summoned thirty-six jurors, and they were present in court, and were oi'ganized into juries Nos. 1, 2 and 3 for that week in court; the three juries being composed of thirty-five men, one having been excused for reasons appearing sufficient to the court. The sheriff was ordered to serve on the defendant, one entire day before Wednesday, the 2d of that month, a copy of the special jurors who had been drawn on the 25th of August preceding, and summoned for Tuesday, the first day of that month, for the trial of defendant, together, as the order states, “with a copy of the regular jurors organized and impannelled for the present week under section 4327 of the Code, and a copy of the indictment in this cause.”

When the case was called on. Wednesday, the 2d day of September, 1896, the bill of exceptions states, the presiding judge said: “I think that under the statute, it is necessary for yon (addressing tlie sheriff) to re-summon those jurors. As their names are called, re-summon them. As the clerk calls them, summon them, Mr. Sheriff.” The clerk then proceeded to call the names of the thirty-five persons who had been summoned and organized into petit jurors on Monday, August Blst, after the regular juries organized for the week, composed of the same persons, had been quashed, and as the clerk called the names of the said thirty-five persons, the sheriff then and there summondeach of them. The solicitor then announced that the State was ready for trial, ‘ ‘and the defendant, being called upon to announce, objected to being put on trial this day because there had been no order setting the case for trial on this day.” The court overruled the objection, and required the defendant to announce, “and thereupon, [as the bill of exceptions states], before announcing, and before the selection of the jury was begun, the defendant filed the following written motion.” Here follows in the bill the said motion of defendant, consisting of fourteen separate grounds. The defendant offered in evidence, on the trial of this motion, the entire record of the cause, — the returns of the sheriff as to how he had executed the or-dors of the court requiring him to serve on the defendant a copy of the indictment and a list of the jurors for the trial of the cause, which is set out in full, showing the names of the thirty-five persons who have been organized into jurors for the third week of the court, — constituting the venire that had been quashed on motion of defendant.

Without referring specifically to all the grounds of this motion, covering every phase of objection to the venire, it is sufficient to say, that said section 4327, under which the thirty-five jurors were ordered by the court to be summoned for the third week of the term relates, b}»' its term, to such jurors as are authorized by the statute to be supplied from the bystanders or from the county at large, “when by reason of challenges, or any other cause, it is rendered necessary * * * to supply any deficiency on a regular jury, or to form one or more juries as the occasion may require.” “Such jurors are called talesmen, and must not be compelled to serve longer than the day for which they were respectively summoned, unless detained longer on the trial of an issue, or tibe execution of a writ of inquiry, submitted to the jury of which they are respectively members, or unless they are re-summoned” — as tales-men of course. The “occasion” requiring the summoning of these talesmen in this ca'se was the quashing of the regular venire of jurors for the week. They were to be summoned for one day only, subject to be required to remain longer on one of the conditions named in the statute. Under and by the provisions of this section, the court found no authority for impannelling regular juries for the entire week, to serve in the place and for the time and for all purposes of the regular juries drawn and impannelled for the week, — such as had theretofore been discharged on the motion of defendant. Certainly, the court was without authority, itself, to summon these men, as it did, and make them a part of the venire to try the defendant. The court could not, of its own volition, place any particular number of jurors on defendant. He had the right to the methods the law prescribed for the selection of jurors to try him. Section 4316 of the Code, not repealed, provides the authority and the means for the organization of special in default of regular juries ; but the special juries for the third week as organized by the court, were not, as the order shows, supplied and organized under this section. Talesmen, such as those placed upon defendant, by the direction of the court, are in no legal sense regular jurors for the week, authorized by statute to form a part of the venire for the trial of a capital case. Such talesmen as are supplied to complete the regular juries for any week of the court, under section 9 of the act of 1887, (Criminal Code, p. 133), of course, are competent for such a trial. Kemp v. The State, 89 Ala. 52; Hester v. The State, 103 Ala. 83; Evans v. The State, 109 Ala. 11; Steele v. The State, 111 Ala. 32.

The motion of defendant to quash the venire placed on him for his trial should have been granted.

3. John R. Cooper, for the State, testified that about two months before the killing of Oakley by defendant. Oakley, one day, passed defendant on the street, .and some words were exchanged between them, and Oakley went on down the street. The solicitor asked the witness what defendant said after Oakley left, and witness replied, that defendant said, “he would show Oakley how to throw slurs on him and this was all it appears he said. The question and answer were objected to, but there was no error in allowing each. The evidence sought was intended to show a threat, and therefrom the animus of defendant towards deceased; and the answer tended to show it was bad.-Roberts v. The State, 68 Ala. 164; Burke v. The State, 71 Ala. 377; Gunter v. Tne State, 111 Ala. 23.

The solicitor then aslced the witness, “What Linehan did then?,; The defendant objected, because irrelevant, and because it called for' the particulars of a previous difficulty, which objections were overruled. The 'witness answered : “Linehan stepped in a store near by and got a pistol and put it in his pocket, and went down the street in the same direction that Oakley had gone.” The rule is that the fact of a previous difficulty between the accused and the deceased is competent evidence as tending to show malice, ill-will or a motive for the killing, but the particulars or merits of the difficulty can not be inquired into.-Garrett v. The State, 76 Ala. 18. It is also held, that threats of defendant running through many months and coming down to a time very near the homicide, are properly admissible. They are admissible on the inquiry of malice vel non.-Rains v. The State, 88 Ala. 98; Roberts v. The State, 68 Ala. 164, supra. An act may imply a threat or menace and display motive, as well as words.

4. A witness, George Fram, examined by the defendant, testified, among other things, that he was present at the shooting, had taken a few drinks, but was not then drunk, nor was he drunk a half hour afterwards. The State afterwards examined one Johnson, to show that he knew said Fram, and half an hour after the shooting he was very drunk. The bill of exceptions purports to set out all the evidence, and it is not shown that Fram testified to any other fact in the case, except that he was not drunk at the times stated. This alone was entirely irrelevant to any issue in the cause ; and furnished no ground for contradicting him by the State.

5. The illustration made by the solicitor before the jury, by walking across the floor between a witness being examined and the jury, and asking the witness, if Oakley, when it was said he was advancing on the defendant, walked as fast as he, the solicitor, was then walking, was an improper method of proving how fast or slowly Oakley walked on the occasion referred to. But, it does not appear that‘the question was answered, and we pass it, with the above disapproval of such methods of eliciting evidence in the trial of causes.

6. Charges 2 and 11 asked by the defendant were properly refused. They each ignore the question of fault on the part of defendant in bringing on the difficulty.

Charge 26 was properly refused. The burden was on the defendant to show that there was a necessity to take life, or that the circumstances were such as to impress on the mind of a reasonable person, a reasonable belief that there was such a necessity, and that there was no reasonable mode of escape, unless the evidence' which proved the homicide proved also its excuse or justification. The burden of proof that defendant was not free from fault in bringing on the difficulty is never on the State, until the ingredients of self-defense have been established by the defendant.-Howard v. The State, 110 Ala. 92; Compton v. The State, 110 Ala. 24; Miller v. The State, 107 Ala. 41; Naugher v. The State, 105 Ala. 26; Holmes v. The State, 100 Ala. 80. The charge is in substance a copy of a charge in Holmes' Case, supra, as to the question of retreat, which was held by us to have been properly refused, because it misplaced the burden of proof as to retreat.

Charges 27 and 28 each ignores the absence of fault, on the part of defendant, in bringing on the difficulty, and the 27th ignores, besides, the question of retreat, and they were properly refused. These charges are so different from those in Kerr's Case, 100 Ala. 4, and the facts in the two cases are so variant, that they find no support in the two charges which were held to be free from error in that case.

, The remaining charges which were refused are of such character, and so often pronounced faulty, we deem it unnecessary to consider them. The same thing is true of the parts of the oral charge of the court, to which exceptions were taken.

Reversed and remanded.

Bexoicbll, C. J., dissents from that part of the decision on the plea in abatement.