Linnehan v. State , 116 Ala. 471 ( 1897 )

HARALSON, J.

1. The record in this case does not show that the defendant had been once tried on this indictment, and convicted of murder in the Second degree. The couTt did not set a day for the trial of the cause, and order the number of jurors prescribed by the statute for the trial, and have a list of them and copy of the indictment served on the defendant, in the manner prescribed for the trial of capital cases. — Or. Code of 1886, p. 134, § 10 of the jury law. . Nor does it appear of record that the defendant pleaded specially that he had been acquitted on a former trial of murder in the first degree in order to avoid a conviction of that offense as required in such cases by Rule 31, p. viii, 82 Ala. That rule makes it the duty of the court to require the defendant, in a case for it, “to announce his election to file or waive his plea of former acquittal.” His election to file this plea or to waive it should appear of record. If he file it, its truth may be confessed by the- solicitor, in which case no order for a special jury to try him shall be made. None of the prerequisites for a failure to set a day for the trial of .this cause as for a .capital offense, and the summoning of a special venire for the trial, appear in the transcript of the record; and as for anything there appearing, the defendant was tried for an offense which might have been punished capitally, without observing the mandatory requirements of the statute for such a trial. This was erroneous. — Burton v. The State, 115 Ala. 1. The error was not cured by what occurred afterwards in the course of the trial, appearing alone from the bill of exceptions, as to the statement of the solicitor, that he would elect to prosecute-the defendant for murder in the second degree.

2. The grounds for quashing the indictment set out in the motion therefor were not well taken. The fact that the commissioners returned the list of jurors, grand and petit, drawn by them to the clerk, signed as county commissioners, and not as jury commissioners, did not vitiate their return. Section 1 of the jury law (Or. Code of 1886, p. 132) provides, “that the county commissioners of the various counties of this State, not including probate judges, shall constitute a board of jury commissioners who shall discharge and perform in their respective counties all the duties' in relation to the selection and drawing of grand and petit juries now required by law,” etc. This return was as well signed by the county commissioners, styling themselves as such, as if they had styled themselves jury commissioners. They were the same officers, charged with the same duties, whether styled in the one or the other way.

3. Nor was there merit in the motion to quash the indictment on the ground that the jury commissioners had not taken the oath prescribed. .The statute requires 'the commissioners in addition to the oath required by law, as commissioners, to take an oa'th “faithfully to discharge the duties required of them under this act, and to keep secret the counsel of themselves and their associates,” etc., “which oath shall be in writing and subscribed by the commissioners as a part of their official oath.” In the absence of proof to the contrary, we will presume the commissioners took the prescribed oath.

The evidence offered was insufficient to prove that they had not done so. Even if they had not taken the oath as prescribed, they were defacto officers, and having performed their duty in accordance with the requirements of the statute, no objection could be taken to their acts, on account of this omission.

4. The solicitor asked the witness, Bobins, how far Oakley was from Lillich’s saloon door when shot. The witness first stated he did not know. ' The solicitor then asked him to give his best judgment as to the distance, and being allowed to answer, he said, “in his best judgment, it was about ten feet.” The defendant objected to the last question when, asked, because the witness had previously stated he did not know. The objection was properly overruled. When the witness stated he did not know the distance he evidently understood the solicitor to inquire for the exact distance, which he did not know. It was entirely proper for him to give his best judgment as to the distance, without being exact. A. G. S. R. R. Co. v. Hill, 93 Ala. 515.

5. On the cross-examination of defendant’s witness, Tipper, the solicitor asked him, “Who he had heard talking of Oakley’s reputation as a dangerous man?” "The witness, it is to be presumed, had testified that such was the character of Oaldey. He replied, to the‘question that he had heard several. This answer was not responsive to the question propounded to the witness by the solicitor. In the bill of exceptions it is then stated, “The solicitor said to the witness in a very loud voice, ‘You answer my question.’ ” The witness replied by ■giving the names of several persons whom he had heard speaking of Oakley’s reputation. Before > the witness answered, the defendant objected to the manner of counsel. The court overruled the objection, and the defendant excepted. A witness who testifies in a proper manner is certainly entitled to respectful treatment by the opposing solicitor, and it is the duty of the court, always, not to allow such a witness to be treated with unnecessary disrespect. It would be a reproach to the administration of justice to do so. The good discretion of the presiding judge, however, must be largely trusted in such matters. No one can discover better than he, nor, perhaps, so well, whether counsel in any given case has violated his obligation in this respect or not. What would not be disrespectful demeanor by counsel towards an unwilling and contumacious witness might be very improper towards a witness whose conduct was proper, and who appeared willing to disclose all he knew about the case, when the only excuse counsel could have for treating him with disrespect, was that the witness did not know enough, or anything; to be of service to counsel and his case. , .

We are unable, from the statement made, to hold that the judge improperly overruled the objection of the defendant to the manner of the solicitor in propounding the question.

6. On cross-examination by the solicitor of defendant’s witness, Robinson, he was allowed, against defendant’s proper objection, to ask him if he knew Warren Tipper’s business, and to state that Tipper was a hoisting engineer at one of the mines. Warren Tipper was the witness who had just deposed to Oakley’s reputation. We are unable to perceive the materiality or relevancy of this evidence.

7. The objection to questions by the solicitor to the witness, Mrs.. Little, “If she heard Linnehan, just before the shooting, call Oakley hard names? Was Linnehan very angry? and if Linnehan cursed Oakley in her presence?” — on the ground that such questions called for the conclusion of the witness — was not tenable. The questions called for the statement of collective facts, subject to the cross-examination as to the facts on which the statement or inference was based. — Thornton v. The State, 113 Ala. 43; Ray v. The State, 50 Ala. 107. The first of these questions, and the answer to it, however, should have been excluded, since the witness, in answer to the further question of the solicitor, what Linnehan had said in calling Oakley hard names, replied she did not know.

The solicitor, when she said she did not know what hard names he used, said to the witness, “Didn’t you tell me right here what he said?” This was objected to, but the objection was properly overruled. The solicitor had a right thus to refresh the memory of his own witness. But, the solicitor went further and asked his witness, “Did you not tell me that Linnehan said he would put a hole through Oakley’s carcass?”' and the witness was allowed to answer, “Yes, sir.” This was not refreshing her memory as to hard names employed by Linnehan towards Oakley, for the answer had no reference to hard names. Moreover, the witness did not testify that what she said to the solicitor was true in fact, and yet the answer was allowed to go to the jury. It was purely unsworn hearsay, and ought to have been excluded. — Sanders v. The State, 105 Ala. 4.

8. In the general charge, the presiding judge instructed the jury “If you believe the evidence beyond a reasonable doubt, you will find that within this county and before the finding • of this indictment, a homicide has been committed, and that Allen Oakley was the victim and John Linnehan ivas the perpetrator.” There was no dispute at all that Oakley had been killed, and that Linnehan killed him; and, if the judge had thus stated it, the charge'would not be subject to criticism ; but we apprehend that the latter part of the charge which we have italicized, from the words victim and perpetrator, as therein employed, tended to make an unfavorable impression on the minds of the jury as to the character of the homicide, and.should have been avoided.

9. The other part of the oral charge excepted to should have been accompanied' with the qualification that it was defendant’s duty to retreat, unless the circumstances justified the reasonable belief that he could not do so, with apparent safety, or that he could not escape without apparently increasing his peril. — Stoball v. The State, ante p. 454; Gibson v. The State, 89 Ala. 121; Cleveland v. The State, 86 Ala. 1; Ex parte Brown, 65 Ala. 446.

For the errors indicated, the judgment of the court below is reversed and the cause remanded.

Reversed and remanded.