Newell v. State , 115 Ala. 54 ( 1896 )

COLEMAN, J.

The defendant was indicted, tried and convicted of murder in the first degree, and sentenced to suffer the penalty of death. By motion and plea, the defendant attempted to raise the question of the legality of the organization of the grand jury which preferred the indictment, and of the special venire, summoned to try him. The court sustained a demurrer to to the motion, and also to the plea. The motion reads as follows : “And here comes the said Pig Newell, by attorney, and moves to quash the indictment, because the act approved February 25, 1887, (under which the grand jury who found this indictment were drawn and summoned), amending an act to regulate the drawing and empanelling of grand and petit juries in Dallas county, approved February 14, 1885, was unconstitutional and void, because it amends the aforesaid act approved February 14, 1885, by reference to its title only, and not by re-enacting and publishing at length so much thereof as is revived, amended, extended or conferred, as is required by law.’'

The plea reads as follows : “And here comes the said Pig Newell, by attorney, and pleads and says that the said State ought not to prosecute further the said indictment against him, because he says, that the act approved February 24, 1887, (under which the grand jurors who found this indictment were drawn and summoned), amending an act to regulate the drawing and empanel-ling of grand and petit juries in Dallas county, approved February 14, 1885, was unconstitutional and void, because it amends the aforesaid act approved February 14, 1885, by reference to its title only, and not by re-enacting and publishing at length so much thereof as is revived, amended, extended or conferred, as is required by law.”

The demurrers are not set out in the record'. This being the condition of the record, we must presume, that the demurrer pointed out the defect in the motion and plea, if they were subject to demurrer on any grounds. We are of the opinion, that both the motion and plea were defective and subject to demurrer. Both are based upon the legal conclusion of the pleader, instead of facts. It is not pretended that the act of February 14, 1885, is unconstitutional and void. This act of February 14, 1885, is complete in itself, and provides for the drawing and empanelling of grand and petit juries in Dallas county. There is nothing in the record of appeal which supports the contention, that the grand jury .or special venire were drawn, summoned or empanelled, under the act of February 24, 1887, (Acts of 1886-87, p. 209), and not under and by virtue of the previous act. — Acts of 1884-85, p. 492. The last act (1886-87) does not repeal the provisions of the act of 1884-85. These provisions are in force and regulate the drawing and empanelling of grand and petit juries ; and if it be conceded, a question we do not decide, that the act of 1886-87 is unconstitutional, in order to properly raise the question attempted to be raised, facts should have been averred in the motion and plea, which showed that the grand jury arid special venire were drawn, summoned and empanelled under the latter act. The conclusion of the pleader is not sufficient. The demurrers were properly sustained.

There was no error in permitting the witness to testify, that the buttons and pieces of cloth found, belonged to deceased, and were worn by him when last seen alive, The credibility of the witness, and extent of her information, could have been tested by cross-examination.

The confessions were clearly admissible. —Burton v. State, 107 Ala. 108.

The court did not err in overruling the demurrer to the indictment.—State v. Tempe, 40 Ala. 350 ; Cr. Code of 1886, §§ 4377, 4378.

There was no error in refusing the charges requested by the defendant. No. 2 has been expressly condemned. Shepperd v. The State, 94 Ala. 102. Charges numbered 4 and 12 are objectionable for many reasons. It does not follow that because parties fight willingly and on sudden provocation, that neither entertains malice against the other. These charges direct the attention of the j ury to the origin of the difficulty as stated by him when testifying in his own behalf, and ignore all the evidence of previous threats, and a premeditated and executed assassination. Charge 15 is incomplete, and asserts an erroneous ju'oposition of law. There may be inconsistency in some of the testimony, and yet sufficient proof to justify a conviction of guilty, as demonstrated on the trial of this case. Charge 16 was properly refused. There was sufficient evidence to justify a conviction, without reference to the testimony of G-olson.

We find no error in the record.

It appearing that the day appointed by the trial court for the execution of the sentence, has passed, it is ordered that the 30th day of July, 1897, be, and is hereby specified as the day for the execution of the sentence.

Affirmed.