Lide v. State , 133 Ala. 43 ( 1901 )

DOWDELL, J.

The city court of Montgomery, though an inferior court únd of statutory creation, is, in all criminal matters, a court of general jurisdiction. Acts of 1863, p. 121. Under the act of its creation, and acts amendatory thereof, in the organization of grand and petit juries, in the administration of the criminal law, it possesses like powers to those conferred by statute on circuit courts. By the statute, (Acts, 1869-70, p. 47), there are three regular terms a'year, commencing on the third Monday in February, and the second Mondays in July and October. At the' February tenn, 1900, which was convened on the 19th day of that month, a grand jury was regularly empanneled and organized for the term, "and on the 3d day of March thereafter*, having completed their duties for said term, the grand jury made report to the court, and was on that day finally discharged.. On the 9th day of March, and after the discharge of the regular grand jury, and during the term of said court, the homicide for*1 which defendant was tried and convicted was committed. The commission of the homicide being made known to the court, an order was regularly made by the court on the 19th day of March, ruder section 5000 of the Criminal Code, for the summoning of a special grand jury, and on the 26th day of March pursuant to said order the special grand jury so ordered was duly organized and empanneled. By this grand jury the indictment in this case was found and returned into court. The indictment so found was attacked by the defendant, both by motion to quash and by plea in abatement. The trial court overruled the motion and sustained a demurrer to the plea. It is contended by the appellant that the city court was without authority or power under the law to organize a special grand jury during the term of the court, and after the regular grand juiry for the term had been discharged. This contention is based upon the proposition that the city court of Montgomery in the organization and empanneling of grand juries' is.'limited'in its authority and power by the act of its creation, and ¡the local statutes enacted for the (selection and drawing of juries for Montgomery county, and that by these statutes, in so far as the county of Montgomery is concerned; section 5000 of the Criminal Code has been repealed, and that under the local jury law for Montgomery county no authority is given for the organization of a special grand jury during the term of the court and after the regular grand jury for the term has been discharged. The local statutes referred to as regulating the selection and drawing of juries for Montgomery county ai e, the acts of February 21, 1887, (Acts, 1886-87, p. Í90) act of December 4, 1888, amendatory of sections 3 and 9 of the act of February 21, 1887, (Acts, 1888-89, p. 139) ; act of December 11, 1890, (Acts, 1890-91, p. 204) > act of February 21, 1893, (Acte, 1892-93, p. 917) ; act of December 8, 1894, (Acts, 1894-95, p. 34). It may be conceded, and which is true, that in these several enactments no provision is made for the empanneling of a special grand jury as was done in this case. It is equally clear to bur mind that in these special laws, the legislature in all reference to the selection and drawing of grand juries, had in contemplation only grand juries to be regularly organized and empanneled either at the regular term, or for a special or adjourned term of the'court, and not in a case of exigency, such as might arise, and which is provided for, under the provisions of section 5000 of the Criminal Code. There is nothing in any of the provisions of the several local acts above mentioned for the -selection and drawing of juries for Montgomery county, which either expressly, or by necessary implication, under a reasonable and fair interpretation of these enactments, can be. construed as a repeal of section 5000, as to Montgomery county. Section 18 of the act of February 21st, 1887, which contains the repealing clause of this act, after repealing section 4732 of the Code of 1876, “and all other laws and parts of 'laws, general and special, conflicting with the provisions of this act,” further provides, “but all laws now in force in relation to jurors, tlieir drawing, selecting, or qualification, not in conflict with this act, are hereby continued in full force and effect.” There is nothing in any of the subsequent amendatory acts above referred to, that contains any other repealing clause. Indeed, there is no more conflict between the provisions of (this section of the (lode and these local statutes, than there is between said section, and other sections of the Code, embraced under chapter 166, articles one, two, three, and four of that chapter, relating to the selection and drawing; of juries for regular and special terms of courts. This section, 5000 of the Code, was intended to meet unusual and extraordinary conditions, with a field of operation not embraced in the provisions of either the local statutes in question, or the other sections of chapter 166 of the Code.

It clearly appears from the record that the special grand jury in this case was summoned pursuant to an order of the court made under the provisions of section 5000 of the Code, and was regularly empanneled and organized in strict conformity to the terms of that statute. We think under the principles laid down in the cases of O’Byrnes v. State, 51 Ala. 26, and O’Brien v. State, 91 Ala. 16, the city court was not without authority and power under the particular circumstances in the case to organize the special grand jury, and its rulings on the motion to quash and the plea in abatement on that ground were free from error.

The order of the court, in the language of the statute, commanded “the sheriff forthwith to summon eighteen persons possessing the requisite qualifications of grand jurors.” There is nothing in the record to show that the persons summoned by ¡the sheriff in obedience to this order, did not possess the requisite qualifications of grand jurors, and the presumption is that he discharged his duty in this .respect. The fact that the sheriff did not select the names of the persons so summoned by him, from the jury list, which is required to be kept in the office of the probate judge, by the special jury law for Montgomery county, made up by the board of revenue and containing the names of the qualified jurors of said county, did not show that the' names of the persons summoned were not in fact on said jury list. The law did not require the sheriff to select from 'the list; it was sufficient if the names of the persons summoned were upon the jury list, and it does not appear that (they were not. We do not, however, wish to be understood, by what is said above, as deciding that it is necessary for the qualification of a grand juror drawn under section 5000 of the Code, that his name should be on the list required to be filed in the office of the probate judge under the local jury law for Montgomery county. Moreover, under, section 5269 of the Code, no objection can be taken to the indictment by plea in abatement or otherwise, on the ground that any member of the grand jury was not legally qualified. — Ragland v. State, 125 Ala. 14; Kitt v. State, 117 Ala. 213; Linchan v. State, 113 Ala. 70; Tanner v. State, 92 Ala. 5; Sampson v. State, 107 Ala. 76; Billingslea v. State, 68 Ala. 486; Germolgez v. State, 99 Ala. 218. Section 5269 further provides, that no objection can be taken to the formation of a special grand jury summoned by direction of the comrit.

The second question reserved by the appellant that is insisted on in argument of counsel, is the ruling of the court in refusing to allow the wife of the defendant to testify as a witness in his behalf. The incompetency of itlie wife as a witness for the husband in a criminal prosecution, or of the husband for the wife, is too well settled, by the many decisions of this court, to call for discussion. — Holley v. State, 105 Ala. 100; Hussey v. State, 87 Ala. 135; Childs v. State, 55 Ala. 25; Johnson v. State, 47 Ala. 33; Hampton v. State, 45 Ala. 82; Miller v. State, Ib. 24; Williams v. State, 44 Ala. 28. Other cases might be cited, but these are sufficient to show that the question is no longer an open one in the courts of this State.

The next insistence in argument by counsel for appellant is an exception by the defendant to remarks of counsel for the State in argument before the jury, in commenting on the failure of the defense to examine one Tobe Jones, a witness subpoenaed for the defendant, in support of the testimony of one Killen, another witness for the defendant. It is urged in argument here, that the defendant’s witness Killen testified to a statement made by Osear Johnson, tending to show a conspiracy against the defendant in working up a case agáinst him, and that Tobe Jones was present. If such was ithe purpose of the testimony of the witness Killen, and that is the insistence here, it was, on the undisputed evidence in the case, and on the defendant’s testimony, who testified as a witness in his own behalf, wholly immaterial. The statement testified ¡to by Killen, as having been made by Oscar Johnson, could have had no influence upon the jury on the question of the defendant’s guilt. The testimony of Killen as to the statement made by Johnson, whether true or false, was altogether unimportant upon the question of the defendant’s guilt, and could not possibly have influenced the jury in their finding on this question. The statement testified to by Killen as having been made by Dr. Oscar Johnson to Tobe Jones at Oak Grove on Monday after the homicide, which occurred on Friday preceding, was, to use the language of the witness Killen; “we are doing splendidly, I have busted, or opened, their scheme, and laid the whole thing bare.” The evidence without dispute showed that Dr. Johnson, who was a brother of the deceased, had been looking after evidence preparatory for the prosecution of the defendant. What bearing or influence this statement in evidence could have had favorable to ¡the defendant, under either the plea of not guilty or the additional plea of not guilty by reason of insanity, it is impossible to discover, in Mew of the defendant’s own testimony, as well as the other, undisputed evidence, as to the facts of the killing. This evidence proved the killing to have been done by the defendant with deliberation and premeditation. The defendant in his own testimony gives in detail the preparation, made by him for the commission of the crime. He gives his reason and motive for the killing— that he had been informed by his wife that the deceased had made a criminal assault upon her on Sunday evening preceding the Friday of the killing, that this information came to the defendant on Monday night. The eMdence without conflict shows that he, during the three days intervening between the time of hi® alleged information and the day of the killing, sought to ascertain the probable consequences to himself under the law, if he should kill the deceased. An excuse, which in law can afford no justification for the act, and after lapse of time sufficient for cooling, after receiving information of the assault, can afford no palliation of his crime. And this cooling time was, and i»s, a question of law, and that three days is sufficient, as a matter of law, cannot be denied. — Ragland's case, 125 Ala. 12; Rogers' case, 117 Ala. 9. We repeat, that in view of this undisputed evidence, on which the defendant was guilty under the law of murder in the first degree, it is impossible to conceive what influence the testimony of Killen as to the statement made by I)r. Johnson, whether true or false, supported or unsupported by other evidence, ■could have upon the jury in determining the question of defendant’s guilt. For the same reason the evidence of Tobe Jones whether it did, or did not, support that, of Killen, was wholly immaterial and of no consequence. Conceding, then, that the court was in error in not arresting, on the motion of the defendant, the State’s counsel in commenting on the failure of the defense to examine tlpe witness Jones, we are unable to see that the defendant was thereby prejudiced. Being satisfied that no injury resulted therefrom to the defendant, we feel it our duty under section 4333 of the Criminal Code, not to reverse the judgment of conviction on account of this error. — Code, § 4333; Evans v. State, 120 Ala. 269; Gaston v. State, 117 Ala. 162; Fuller v. State, 117 Ala. 36; Terry v. State, 118 Ala. 79; Wright v. State, 108 Ala. 60; King v. State, 100 Ala. 85.

The record contains other exceptions reserved by the defendant to the remarks made-by counsel in argument to the jury, but those exceptions are not insisted on here. It. is within the range of legitimate argument for counsel to discuss inferences that may be drawn from the evidence, and to state such inference. — Cross v. State, 68 Ala. 476. In Hobbs v. State, 74 Ala. 41, it was said by this court, in an opinion by Stoxé, J. : “Trial courts would be treading on dangerous ground, were they to exercise a severe censorship over the line of argument counsel may pursue. They must not allow them to constitute themselves unsworn witnesses, and ¡to state as facts, matters of which there is no testimony. But we have gone no further. On the contrary,' we expressly said in Gross’ eme, (68 Ala.) -that ‘every inference 'counsel may thinlc arises out of the testimony,’ is a legitimate subject of criticism and discussion.” What was here said was quoted approvingly in Mitchell v. State, 114 Ala. 5, 6. We do not think there is any merit in these exceptions.

We see no ground for objection in the court’s action in clearing the court-house, because of applause in the audience of remarks of the State’s counsel. This action was beneficial rather than prejudicial ¡to the defendant. There was no deprivation of a public trial. What ivas done, was for a proper and orderly administration of the law. It was not only the power, but the duty of the court, to prevent demonstrations of approval or disapproval by ithe spectators in the finals of causes, and rf need be, to this end, to exclude the offending parties from the court-house.

There were a number of exceptions reserved to the ruling of the court in the admission and exclusion of evidence. None of these exceptions, however, are insisted on in argument of appellant’s counsel. We have, nevertheless, considered them, but failed to see wherein any error had been committed by the trial court resulting in injury to the defendant.

On the question of the defendant’s insanity, the only evidence offered related to his mental condition after the commission of the homicide, and during the first week or two of his 'confinement in jail. There was no evidence «offered to show insanity at or prior to the time of the killing of the deceased, nor any effort to show'- any disease of the brain. The evidence fended to show a state of nervousness and mental excitement, nothing more than might naturally follow upon reflecting on the crime he had committed, and the apprehension of the dreaded consequences to come to him under the law'-. The doctrine of moral or emotional insonitv has no place in our system of jurisprudence. — Walker v. State, 91 Ala. 76; Parsons v. State, 81 Ala. 577. It must be tbe result of tbe -duress of mental disease solely. — Parsons v. State, supra. Under the plea of insanity the burden of proof is on ¡the defendant; and what this burden of proof is, is shown in Parson’s case, supra, and ■stated as follows: 1st. He must show by a preponderance of the evidence, that he, at the time of the commission of the crime, was,' as a matter of fact, afflicted with a disease of the brain, so as to be idiotic, or otherwise insane. 2d. He must show by a preponderance of the evidence that being thus afflicted he did not know right Horn Avrong as applied to the particular action. 3d. If being thus afflicted AAdth a disease of the mind, but knoAving right from wrong, he must then shoAV by a preponderance of the evidence that by reason of the duress of such mental disease he had so far lost the power to choose between the right and wrong and to avoid doing the act, that his free agency was destroyed; and that at the same time the crime was so committed with such mental disease, in the .relation of cause and effect, as to have been the product of it solely. See also, Boswell v. State, 63 Ala. 397; Maxwell v. State, 89 Ala. 150; Martin v. State, 119 Ala. 1; Ragland v. State, 125 Ala. 12. Under these authorities the rulings of the court on evidence and charges under the plea of insanity were free from error.

The written charges requested by the defendant were properly refused. These charges were faulty in that they Avere argumentative, or for giving undue prominence to portions of the evidence and ignoring other evidence in the case.

There Avas no error in the giving of the written charges requested by the State, nor was there any error in the court’s instructing the jury as to the form of the verdict.

There was an application for a change of venue, which was denied by the court. While it is not insisted on here in argument as error, we have given it due consideration, and have no doubt of the correctness of the court’s- action in refusing it-.- — Hawes v. State, 88 Ala. 37; Byers v. State, 105 Ala. 31; Jackson v. State, 104 Ala. 1; Daughdrill v. State, 113 Ala. 7; Thompson v. State, 122 Ala. 12; Terry v. State, 120 Ala. 286.

We find no error in the record from which any injury (resulted to tlie defendant, and the judgment and sentence of the court must he affirmed,

We have been furnished with an additional brief by counsel for appellant, after the foregoing opinion had been written, insisting on exceptions not insisted on in the original argument and brief. We have again gone over and carefully considered these exceptions and fail ¡to see any reason for changing the opinion and the conclusion reached.

Affirmed.