Peel v. State , 144 Ala. 125 ( 1905 )

DENSON, J.

The fall term 1904, of the circuit court held for Houston county was organized on the 31st day of October, 1904, the day fixed by law upon which said term of said court should be convened. The court was organized and presided over during the first week of the term until the afternoon of the 4th of November, 1904, by the Hon. A. H. Alston, Supernumerary Judge for the State. On the 3rd day of November, 1904, the grand jury organized by the court (Judge Alston presiding) at. the above named term, returned the indictment in this case against the defendant, Will Peel, charging him with murder in the first degree.

On the 4th of November, 1904, the Hon. H. A. Pearce, Judge of the 12th judicial circuit, relieved Judge Alston and presided over the court during the remainder of the term. On the same day, and after Judge Pearce had relieved Judge Alston and was discharging his duties as presiding judge of said court, the defendant filed a motion to quash the indictment. The business of the court not having been disposed of at the regular term an order was, made by the court adjourning the court to December the'8th, 1904, the adjourned term to continue for the trial and disposition of civil .and criminal cases until the court should be finally adjourned.

The motion to quash the indictment-was renewed at the adjourned term, and on the healing was overruled. The averments of the motion were proved. It was also shown that the Supernumerary Judge was directed and instructed by the Governor to hold the first week of the fall term 1904 of the circuit court for Houston county.

Section 2 of the Act of February the 20th, 1899, which crehted the office of Supernumerary Judge1, provides, that such judge shall have power and authority, under the direction of the Governor, to hold any regular term of the circuit court or chancery court in this state, and to exercise all the powers and privileges and perform all the duties of circuit judges and chancellors while in office. Section 3 of said Act provides, that it shall be the duty of every circuit judge and chancellor, when from sickness or from being engaged in holding a special term of court or from any other cause he cannot attend a regular term of liis court, to notify the Governor of that fact, etc. From this Act it seems, that reg'ardless of the cause, if the circuit judge cannot hold the regular term of the court, the Supernumerary Judge, when directed by the Governor, may do so. The proof, while it showed that the circuit judge was in Dothan, also showed that he did not appear and hold the court. We will presume in the absence of any thing to. the contrary, that the circuit judge had notified the Governor that he could not attend the regular term of the court during the first week, and that it was upon such notification that the Governor directed the Supernumerary Judge to hold the court for the first week. Nor was it essential to the regularity of the organization of the court, that the minute entry showing the organization of the court by the Supernumerary Judge should have set forth any reason why the circuit judge was not present to organize the court. The motion to quash the indictment was properly overruled.

The defendant, on the 12th of December, 1904, filed a motion to auash the special venire served upon him, which motion contained many grounds the first of which is, in substance, that the order made by the court at the regular fall term, 1904, of the court adjourning the court until Thursday, December 8th, 1904, .provided for jurors to be summoned for the week of said adjourned term beginning Monday, December 12th, 1904, but made no provision for jurors to serve any portion of the week including Thursday the 8th day of December, 1904. We cannot see how the fact that no jurors were ordered for the first week of the adjourned term could possibly have affected any right of the defendant or the validity of the venire. On Thursday, the 8th of December, the defendant being present, the court made an order setting Monday, December 12th, 1904, as the day for the trial of this case, and of course if jurors had been ordered summoned for the first week of the adjourned term they could not have formed a part of the venire in the defendant’s case, set as it. was, for a day in the next week. It is not necessary for us to inquire what business the court transacted during the first week of the adjourned term other ■than that which appertained to the defendant’s case. It did not concern the defendant whether the count, was engaged in the trial of cases or not.

Section 917 of the Code which relates to adjourned terms of the circuit court, with reference to the order for jurors, provides as follows: “In the entry of such adjournment, the order in which the unfinished business will be transacted will be prescribed, and all necessary orders made for summoning jurors to serve at the adjourned term.” We think in the light of the statute, that the objection made in the 3rd ground of the motion to that part of the order of the court which relates to summoning jurors for the adjourned term, is untenable. The order in this respect was all that was necessary under the statute.

The second, fourth and fifth grounds of the motion state mere conclusions; no facts are set out showing in what respect the venires were not drawn and summoned according to law.

The sixth ground of the motion shows that two- of the fifty special jurors drawn on the 8th of December in this case, served as regular jurors at the regular term in October 1904. The record shows that after the court adjourned to convene again on December the 8th, and before it did convene on that day, the jury commissioners at the time provided by law refilled the jury box and from the box so refilled, the presiding judge drew the names of the fifty special jurors, among the names drawn were those of F. M. Paramore and J. D. Norrell. Under the facts above stated, the fact that the two jurors named, served as regular jurors at the regular term of the court held in October, did not affect the validity of the special venire; — Arps’ case, 97 Ala. 5, 12 South. 301.

The witness Reynolds, testified that he saw the body of the deceased a short time after he was killed at the place of the killing; that when he reached the body it Avas on the back, the feet fOAvards the south and the head toAvards the north, the left hand rested on the body, and the right hand was raised and resting over backwards from the head, there was a pistol in the right hand, also blood in the right hand, there was no blood on the top side of the nistol 'but- the bottom side of the pistol where it lay in the hand was bloody. Witness then testified that he saw two tracks immediately near the body, the right-foot track pointed the toe towards the body, and the left foot track pointed the heel towards the body and was on the opposite side of the body from the right foot track, the left track made a slanting impression, slightly backwards. He testified that- he did not see the person make the tracks. The solicitor then asked the Avitness to stand up before the jury and show how the tracks were. The defendant objected to the witness showing how the tracks Avere made, but the court overruled the objection. The floor in front, of the jury was carpeted and there was a seam in the carpeting which ran east and Avest. The witness answering the question, pointed to the seam in the carpet, and said, let. this seam represent the body of the deceased, and placing his right foot near the seam on the south side vfith the toe of the foot pointing towards the seam and his left foot on the opposite side about two or tAvo -and one-half feet from the other foot and the heel of the shoe towards the seam, while standing in this position told the jury, that the position of his feet on the floor with reference to the seam indicated the position of the tracks with reference to the dead body of Canter. Another witness had. previously testified to the position of the tracks with reference to the body substantially as did witness Reynolds, and further testified that the tracks were larger than his and that he wore a. number nine shoe. The defendant moved to exclude “the attitude and position of the witness while placing his feet on each side of the seam.”

Tlie only attitude and position of the witness presented ■to us by the bill of exceptions is that the witness was standing and that his feet were in the position above stated. It seems to' us that the position which the evidence shows the witness placed his feet in with reference to the seam, corresponded precisely with his evidence as to the position of the tracks with reference to the body. The position of witness’ feet with reference to the seam, was evidence similar in character to a diagram of the scene of the difficulty showing the relative position of the body of the deceased and the tracks. The statement of the witness that the position of his feet on the floor and with reference to the seam indicated the position of the tracks with reference to the body of Canter, was a statement of a fact and not opinion. There was no1 error in the rulings of the court overruling the objections to the question and the motion to exclude the evidence.- — 1 Mayfield’s Dig. p. 320, § § 155, 158.

The court against the objection of the defendant permitted the solicitor to ask witness Reynolds if he was a justice of the peace. The witness answered that he was. Against the objection and and exception of the defendant •the court- then permitted the witness to testify that he held an inquest over the body of the deceased. We see that the purpose in asking the witness whether or not he was a justice of the peace Avas to show his authority for holding an inquest. It Avould have been entirely competent. for the state to have proved by the Avitness that' as acting coroner at .such inquest he made an examination of the body and located the Avounds and ascertained the nature of them. As the proof went no further than to sIioav the inquest AAias held we do not see Iioav it could possibly have injured the defendant. — § 4333 Code 1896;

The relating by the solicitor of the joke in illustration of his argument, Avas within the bounds- of proper forensic discussion. He did not relate the joke as a fact nor as evidence of any fact in the case. It has been heretofore said by this court, “It is only when the statement is of a substantive, outside fact. — stated as fact — and which manifestly bears on a material inquiry before the jury, that the court can interfere, and arrest discussion.” Cross’, 68 Ala. 476; Cunningham’s case, 117 Ala. 59, 23 South. 693; Brown’s case, 121 Ala. 9, 25 South. 744.

This brings us to the consideration of the charges refused to the defendant: Charge 1 pretermits any inquiry as to the nature of the provocation of the passion. Tliere must be a concurrence of adequate provocation and sudden nassion to reduce a homicide to manslaughter. — Mitchell’s case, 60 Ala. 26; Prior’s case, 77 Ala. 56; Johnson’s case, 133 Ala. 38, 31 South. 951; Gregory’s case, 37 So. Rep. 259; Clark’s Man. Cr. Law, § § 419, 421. Futhermore, the charge leaves out of consideration the evidence tending to show that the defendant brought on 'the difficulty. — Adam’s case, 133 Ala. 166, (chg. 8), 31 South. 851.

Charges 3 and 4, do not set out the ingredients of self-defense. Such charges have been frequently condemned. —Roden’s case, 97 Ala. 54, 12 So. 419; Miller’s case, 107 Ala. 42, 19 South. 37; McLeroy’s case, 120 Ala. 274, 25 South. 247; Stewart’s case, 133 Ala. 105, 31 South. 944.

Charges 2 and 5 are argumentative and for this reason were properly refused. Charge five is also elliptical.— Campbell’s case, 133 Ala. 81, 31 South. 802; Stewart’s case, supra.

There is no error in the record and the judgment of conviction is affirmed.

Affirmed.

McClellan, C. J., Haralson and Dowdell, JJ., concurring.