Barden v. State , 145 Ala. 1 ( 1906 )

DOWDELL, J.

The appellants having been acquitted on a former trial of murder in the first degree, of which acquittal they availed themselves by plea, were in the present instance put on trial for murder in the .second degree, of which charge they were convicted. In selecting the jury for the trial, and before the same was completed, the jurors on the regular panels were exhausted by reason of challenges by the state and defendant. Thereupon the court ordered the sheriff to summon from the qualified citizens of the county a sufficient number to complete the jury as required by law. Among those so summoned wa,s one D. M. Hardzog, who, being examined on his voir dire touching his qualifications as a juror, testified as follows : “That he was a resident householder of the county of Covington and State of Alabama, and had been for the last preceding 12 months; that he was not related by blood or marriage to either of the defendants or the deceased ; that he had no inteerest- in the acquittal or conviction of the defendants, and had not made any promise, or given any assurance that he would convict or acquit the defendants and that he had no fixed opinion as to the guilt or innocence of the defendants that would bias his verdict; that he was not on the grand jury that found the indictment against the defendants, and was not on the jury that tried the defendants on the former trial of this cause.” The bill of exceptions then further states: “The court thereupon asked said Hardzog in what portion of the county he lived, to- which he replied, that he lived in River Falls beat, in ¡said county. The court thereupon, before either the state or the defendant had the opportunity of accepting or challenging said Hardzog as a juror, being in possession of information from which, in the judgment of the court, the ends of justice would be best subserved by so doing, said information being obtained by the court from outside, sources, and not from witnesses sworn or examined by the court, and not from being divulged to the court in any of ihe proceedings had in the trial of the cause, or in impaneling the jury, ex mero, motu, excused said Hardzog, and caused him .to stand aside. * * * At the time said juror was excused by the court neither the state nor the defendant had exhausted their challenges.” To this action- of the court the defendants excepted.

In Thomas v. State, 133 Ala. 139, 32 South. 250, it is said: “It was never contemplated by the lawmakers that the enumeration of causes for challenge (contained in ■the statute) should operate to deny to either the State or the defendant the very purpose of the statute — -to secure a fair trial by an honest, impartial, and intelligent jury.” In Scott v. State, 133 Ala. 112, 32 South. 623, it is said: “It is well settled that the enumerated causes for challenge in the Code are not exclusive of all others, and of the discretionary power of the court to set aside any one summoned as a juror who for any cause appeared to be unfit to serve as such.” And in Plant v. State, 140 Ala. 52, 56, 37 South. 159, 160, this court speaking through Haralson, J., said: “The excuse offered by him [the juror] is not shown, but it is stated that it was held good by the court.. We must presume it was for a reasonable or proper cause, in which case the court had the authority to excuse him.” In Williamson v. State, 117 Ala 258, 23 South. 5, it is said: “It. is a duty of the trial court, as far as it can be done consistently, to see that, fair and impartial trials are had, and may to that end of its own motion reject a juror summoned, if it appears under the circumstances lie is an unsuitable person to serve. A duty thus exercised, not arbitrarily, but apparently for good purposes in the interest of justice, will not be reviewed” — citing State v. Marshall, 8 Ala. 302 ; Fariss v. State, 85 Ala. 4, 4 South. 679 ; Griffiin v. State, 90 Ala. 599, 8 South. 670. In James v. State, 53 Ala. 380-387, it is said: “The reasoning above shows that, in our opinion, there was no error which this court can notice in the omission to ask the jurors other questions than the eight contained in the record, or making' other inquiries in respect to their qualifications. Besides that, the judge may have personally known the jurors, and so have ascertained their fitness, or may have ascertained it to his satisfaction by means of their ansAvers to his questions, and their known reputation for integrity and intelligence. His judgment in respect to such qualifications could not be reviewed in this court.”

It does not appear for Avhat particular cause the court excused the juror, but it does appear that in the judgment of the court the ends of justice Avould be best sub-served by so doing.” And it further appears that.the court was in possession of information upon which such judgment was based, and it is wholly immaterial from what source the court received its information such information being sufficient to lead the court to the conclusion and judgment that the ends of justice required that the said person so called as a juror should stand aside. Wé cannot say, from what is shown by the record, that, there was an arbitrary exercise of power by the trial court, and under* the authorities above cited the judgment of the court in respect to said juror’s qualification cannot be here reviewed.

The evidence of the witness Stanley should not have been excluded, and the trial court erred in so doing. It was proper for the jury to be in possession of any and every fact which might throw light upon and elucidate the transaction. Under the circumstances of this case attending the difficulty, the condition of the deceased and his companion, Stuart, at the time, whether under tllie influence of liquor or not, was material. In connection with the testimony of the witness, Stuart, who had already been examinecl by the State, the evidence of Stanley sufficiently identified the. deceased and Stuart as being the two persons the witness saw going from the direction of the depot to De Vane’s bar, where the difficulty occurred, and it should not have been excluded on. the ground of a lack of identification, and this was the sole ground of the motion to exclude.

There Was no error in overruling the objection to the question on cross-examination of the defendant Rufus Barden when testifying as a witness in his own behalf, if he and Letch did not go behind the counter, while the deceased, who was still alive, was lying on the floor. It was competent to show the conduct of the defendants after the killing,,and there can be no question.of its being within the latitude of a cross-examination. Nor -was there any error in allowing the solicitor to ask the witness on his cross-examination if he introduced in evidence on the preliminary trial the clothes “now offered as the clothing you had on at the time of the shooting.” The. defendant having offered himself as a witness, he was subject, to be examined as such, and it was competent for the State to call for any fact within the knowledge of the witness pertinent and relevant to the issue.

There were other rulings of the court on the introduction of evidence to- which exceptions were reserved, but they are not insisted on by 'the counsel. Besides, they seem to be wanting in merit, and for this reason we decline to discuss them.

Written charges 8 and 22, refused to the defendants, were patently bad, and therefore properly refused.

Written charge 29, if for no other reason, was properly refused as being argumentative.

Charges,- 26, 27 and 28, were each misleading in tendency, and were ,therefore, properly refused. There was other evidenc in the case than that of the Avitnesses Whit-lock and Stuart from Avliich the jury might have found the defendants guilty. ■ This being true these several charges, besides their misleading tendency, gave undue prominence to the testimony of these two witnesses. In the case of Jackson v. State, 136 Ala. 22, 34 South. 188, Avhere a. similar charge was held good, there Avas but one witness and this fact is sufficient to differentiate that case from the one at bar.

For the error pointed out, the judgment of the circuit court is reversed, and the cause is remanded.

Reversed and remanded.

Weakley, C. J., and Haralson and Denson, JJ., concur.