Thomas v. State , 133 Ala. 139 ( 1901 )

DOWDELL, J.

The defendant and one Tom Murphy were jointly indicted at a special term of the circuit court- of Elmore county for the. murder of Robert White alias Robin White, by hanging him by the neck with a rope. The defendant Murphy was not arrested, and on motion of the solicitor a severance was ordered by the court, and the defendant Thomas was tried alone. The bill of exceptions recites as follows: “Thereupon, it was, before the examination of any of the juror® on their voir dire, conceded by the defendant that the following named persons, to-jvit, Lem Strength, John Strength, Will Still, Martin Fuller, Dave Parker, Jim Pugh, Ben Martin, Jr., Tom Duncan, and Tom Dorrough were indicted at this special term of the court for the murder of Robert White alias Robin White at the same time and place that the defendant Thomas is ■indicted for, and that said parties are not indicted in the same indictment with defendant, but cinder different indictments, and that said indictments are pending in the court, and that Ben Martin, Jr., and Will Still are in custody awaiting trial at this time of this term on said indictments against them.” In selecting the jury for the trial, the name of W. F„ Adkins was drawn as a juror, and upon examination on his voir dire, it was shown that he was a second cousin to the wife of Ben Martin, .Jr., -who was then in custody, awaiting trial under an indictment for' the same offense. Against the objection of the defendant, the court allowed the State to challenge said juror for cause, to which ruling the defendant excepted. Likewise the name of W. Britt was drawn as a juror, who, on examination on his voir dire, was shown to be a second cousin to Will Still, who was then in custody awaiting trial under indictment on the same charge. Against the objection of the defendant, the court allowed the State to challenge this juror for cause, and to which ■ruling the defendant excepted. It is contended by counsel for the appellant- that the relationship here is not named in the statute, (Code, 1896, § 5016), as a ground of challenge for cause. It is not questioned but that the degree of the kinship is within that specified in subdivision 4 of section 5016, but it- is urged that the relationship of the juror is not with any one pf the persons named in the statute, and, therefore, can not he a. ground of challenge for cause; the insistence being, that as the statute specifies certain persons whose relationship t-o the juror disqualifies, and furnishes ground for challenge, that it'must be construed as forbidding as ground of challenge for cause the relationship of the juror to any other person. If the statute calls for such a construction, then it would follow, that in the case of a joint indictment against two or more for the same offense, where a severance is demanded, which is a matter of right (’Code, § 52T5), the defendant on trial alone, might have the father or brother of ¡the other person jointly indicted with him and awaiting trial, to sit as a juror in his -case. It requires no argument to demonstrate that- such a juror, in the very nature of- things, would not be exempt from influences, that would render him incompetent to act a-s a fair and impartial judge. Again, if the construction asked for, be ithe proper one, the logic of the reasoning would confine the grounds of challenge of the juror for cause, to those mentioned in the statute, since the reasoning proceeds upon ¡the idea that the specifying'of certain things in the statute, is the exclusion of everything not mentioned; or as it is put in argument, the mention of particular persons, is to the exclusion of persons nqt mentioned. The decisions of this court are opposed to the views urged in argument by counsel for appellant. In State v. Marshall, 8 Ala. 302, it was decided, that the enumeration in the statute of causes for challenge was not in exclusion of all others. The purpose of the statute is to -secure a fair trial between the State and the defendant by an honest, impartial and intelligent jury. It was- never contemplated by the lawmakers, that the enumeration of causes for challenge should -operate to deny to either the State or the -defendant the very thing that it was the purpose Of the statute to secure — a fair trial by an honest, impartial, and intelligent jury. The principle laid down in Marshall’s case, supra, has since been reasserted and adhered to in the following cases: Smith v. State, 55 Ala. 1; Brazleton v. State, 66 Ala. 96; Griffin v. State, 90 Ala. 596; Carr v. State, 104 Ala. 4; Id. 104 Ala. 43; Wickard v. State, 109 Ala. 45. In Brazleton’s case, supra, it was -said: “Impartiality, freedom from bias -or prejudice, capacity without fear, favor or affection, a true deliverance to make between the accused and the State, the law demands as a qualification of a j u-ror; and it is a-s essential -as- the impartiality of -a judge. Relationship within -certain degrees, whether of consanguinity or affinity, is an absolute disqualification. It is not -only such relationship, but temporary relations formed in the course of business, or in the intercourse of life, which may disqualify, whenever they m-ay import a ju-st belief -of a want of impartiality — that a juror -cannot stand indifferent, either from interest, or -from the favor springing out of the relation.” In that case the juror was bail for the defendant, -and it was held to be good ground of challenge for cause. Our conclusion is, that the trial court iu the case before us, properly allowed the State to challenge the jurors for cause.

Charge No. 19 is involved and far from being clear. It was calculated to confuse and mislead the jury, and for that reason the court committed no error in refusing it.

Charge 16 requested by the defendant is incomplete. Where a word or words are omitted from-a charge, Which render it incomplete, it is not incumbent on the court to supply such omission in order to give it sense and meaning. The statute requires charges when requested in witting, to be given or refused as asked.

Charge 18, assuming the proof of suspicious facts, and at the same time ignoring the other evidence in the case, was misleading in its tendency, and for this reason if no other ivas bad and, therefore, properly refused.

There were exceptions reserved to other charges given and refused, but no comment is necessary, as it is conceded in argument by counsel for appellant, that there is no merit in these exceptions.

After evidence introduced from which the jury might reasonably infer the existence of a conspiracy, the declarations and conduct of a conspirator in furtherance of the common purpose are admissible in evidence against a co-conspirator. — Hunter v. State, 112 Ala. 77; Johnson v. State, 87 Ala. 39; McAnally v. Stale, 74 Ala. 9.

'There is no merit in the exceptions reserved to the rulings of ¡the court on the evidence.

We find no error in the record, and judgment must be affirmed.