Rector v. State , 11 Ala. App. 333 ( 1914 )

BROWN, J.

The law (Acts Sp. Sess. 1909, pp. 305-320) imposes upon the jury commissioners of the county the duty of preparing a jury roll, which must contain the name of every male citizen of the county, not specifically exempt, possessing the prescribed qualifications requisite to jury service. The statute provides for a clerk, and contemplates that he shall perform the clerical labors of the commission, keep its records, and certify to their contents.

“To the end that every male citizen possessing the prescribed qualifications and not exempt may be enrolled, and none other, the commission may summon witnesses, administer oaths, and take testimony touching the qualifications of any person residing in the county. The jury roll is the evidence of the commission’s judgments. The determination of the qualifications of the prospective jurors involves the judicial function. ‘Whenever the law vests a person with power to do an act and constitutes him a judge of the evidence on which the act may be done, and at the same time contemplates that the act is to be carried into effect through the instrumentality of agents, the person thus clothed with power is invested with discretion, and is quoad hoc a judge.’- — 23 Cyc. 504.” — Nelson v. State, 182 Ala. 449, 62 South. 190.

Upon the completion of the jury roll, the commission is required to transcribe the names appearing on the roll on plain white cards all of the same size and texture, showing the place of residence and occupation; and these cards are placed in the jury box, and none other. When the name of a person is drawn from the jury box for jury service, the presumption of the law is that such person possessess all the qualifications prescribed by the statute. — Jones on Evidence, §§ 45, 46; Guesnard v. L. & N. R. R. Co., 76 Ala. 453. The trial court was therefore not required to inquire into- and ascertain the general qualifications of the persons drawn from the jury box to constitute the grand jury which found the indictment in this case. The tact that the names of the persons who constituted the grand jury Avere draAVn from the box by the presiding judge was prima facie evidence that they Avere qualified jurors, and was sufficient evidence to justify the court, in the absence of evidence offered at the time the grand jury was organized, to enter the order the court did enter — that the persons organized as a grand jury possessed all the qualifications required by law of grand jurors.

If this finding of the court could be impeached at all, there was nothing in the evidence of the Avitness Waldrop that tended to impeach it. All that his evidence tended to show Avas that the court made no specific inquiry as to the qualifications of the persons organized as members of the grand jury; and, as Ave have shoAvn, no such duty rested upon the court, in the absence of proof overcoming the presumption of the laAV that the persons Avhose names were draAvn from the jury box possessed the requisite qualification's.

The fact that the grand juror Ben Wright was related to the deceased was not material, for the reason that this was not made a ground of the motion to quash the indictment.

For reasons above stated, as Avell as for the reason that no objection to the indictment on any ground going to the formation of the grand jury can be taken by motion to quash (Acts Sp. Sess. 1909, p. 315; Askew v. State, 6 Ala. App. 22, 60 South. 455) the defendant’s motion to quash the indictment was properly overruled.

After the defendant had interposed the plea in abatement to the indictment, and before the demurrer was filed thereto, the record shows that the plea was amended by striking out grounds 1, 2, and 3; some of these grounds going to the point that the persons constituting the grand jury were not drawn by the person authorized by law to draw them. With these matters stricken from the plea by amendment, the other matters sought to be presented by that plea, in view of the provisions of section 23 of the jury law (which provides: “That no objection to an indictment on any ground going to the formation of the grand jury which found the same can be taken to the indictment, except by plea in abatement to the indictment; and no objection can be taken to an indictment by plea in abatement except upon the ground that the grand jurors who found the indictment were not drawn by the officer designated by law to draw the same.” — Acts Sp. Sess. 1909, p. 315, § 23), afforded no ground for quashing the indictment, and the court did not err in. sustaining the demurrer to the plea in abatement. — Collins v. State, 3 Ala. App. 67, 58 South. 80; Newell v. State, 8 Ala. App. 182, 62 South. 968; Askew v. State, 6 Ala. App. 22, 60 South. 455.

The provisions of the statute pertaining to the time the court shall draw the regular jurors, and the number of such regular jurors to be drawn, are merely directory and constitute no ground for quashing an indictment, either on motion to quash or on plea in abatement, provided the names of such jurors are drawn by the judge of the court, the person designated by law to draw the same. — Acts Sp. Sess. 1909, pp. 315-317, §§ 23, 29.

If what was said in Tucker v. State, 152 Ala. 1, 44 South. 587, could be applied to the present jury law, .what is there said with reference to plea in abatement has no application to the defendant’s plea, here filed, after its amendment eliminated the reasons for quashing the indictment discussed in that case.

Just before the fatal rencounter took place between the deceased and the defendant, the deceased and his brother had engaged in a wrestling match; there being present besides these the defendant, David Nolen, and others. Just before these parties reached the place where the difficulty occurred, the defendant had turned off on the road leading to his home, leaving the deceased and the others, who went on in the direction of their homes for a short distance, when the wrestling match was renewed between deceased and his brother, accompanied by loud talking. Upon hearing this loud talking, the defendant turned around and went back to where the deceased and the others were. David Nolen, who was an eyewitness, after detailing the facts and circumstances leading up tO' the time the defendant returned, further stated:

“When he (the defendant) came back, Jim Wright was insisting on wrestling with Ben Wright, and the defendant came up, and Jim Wright said to the defendant, ‘Stand back, and let Ben and me wrestle.’ Ben Wright said: ‘I don’t want to wrestle. You can come and throw me down, but I am not going to wrestle. And Jim Wright said, ‘Stand back and let us have it,’ and he stepped back, and Jim told Ben he would have to wrestle with him or fight him, and Jim kept on trying to get Ben to wrestle with him, and Ben would not do it, and finally Ben got him down and got astraddle of him, and said, ‘See, boys, I am not trying to hurt him,’ and Ben got up and grabbed his hat and ran off up that road leading by the sorghum mill leading from the main road, and Jim Wright after him, and Mr. Rector said something like, 'Let’s go after them,’ and I told him not to go.”

Here the solicitor asked the witness, the question, "And you said what?” Over the objection of the defendant, the court allowed the witness to answer, “I told him (the defendant) not to go.” The evidence of this witness shows that the defendant replied to witness’ remark, "Oh, by God, I am going,” and that he went on after the Wright boys only a short distance, when he met the deceased and the difficulty occurred.

The testimony of the witness as to what the witness said to the defendant was clearly a part of the res gestae, and the court committed no error in overruling the defendant’s objection. Besides, it was but a repetition of what the witness had just stated, and no motion was made to exclude the previous statement of the same fact.

It was incumbent upon the state to show that the wounds inflicted by the defendant resulted in the death of the deceased, and the testimony of the witness Nolen tending to show, after he was cut, deceased walked off and lay down in the sand, and was carried by witness and others to the house of a Mr. Turner, and from there to Birmingham, and was brought back next day a corpse, was clearly relevant, and the court committed no error in overruling defendant’s objection thereto. For like reasons, there was no error in admitting the testimony of Dr. Young, tending to show the nature and serious character of the wounds inflicted by defendant on the person of the deceased, and no prejudice could possibly have resulted to¡ the defendant from this evidence, as it was not controverted that the deceased died from the wounds inflicted by defendant.

The defendant had a- right to show that the witness Nolen on the occasion of the difficulty was under the influence of liquor, and the degree or extent of his intoxication; but the fact that the witness was afterwards indicted for public drunkenness on the occasion of a negro celebration was clearly not relevant to any issue in the case. The defendant’s questions, embracing both phases of such testimony, were objectionable, and the court committed no error' in sustaining the objection made thereto by the solicitor. The fact that the witness had been indicted, if such was a fact, had no probative force as evidence to show that the witness was drunk on the occasion of the fatal difficulty.

As we have shown, all that was said by those present at the place of the difficulty immediately before the fatal rencounter, and at the place where it occurred, was admissible as a part of the res geste, as illustrating the conduct of the parties and shedding light upon the main issue — the guilt or innocence of the defendant of some degree of homicide, as charged in the indictment. The court was not in error, therefore, in refusing to exclude the statement of the witness Burt Weathers as to what took place immediately after the defendant came back where the deceased and his brother were engaged in a wrestling contest.

The expression made by the deceased as to his desire about the prosecution of the defendant was not shown to have been under a sense of impending dissolution, so as to malee it admissible as a dying declaration. It is not shown to have been so closely connected with the difficulty as to be a part of it or to shed any light on it. It was clearly inadmissible, as the desire of the deceased could not be considered by the court in the enforcement of the criminal law, whether that desire be in favor of or against the defendant, and there was no error in the ruling of the court sustaining the state’s objection to the question propounded to Dr. Young seeking to prove such desire. -

For like reason, there was no error in excluding the statement which the witness Jess McGee accredited the deceased with making, to wit, “If I die, just let Jim Rector go.” While this statement was made soon after the deceased was carried to Turner’s residence and after the doctor had arrived, all that the record shows ocurred at the time, as stated by the witness, was:

“Dr. Young called me and said if the boy made a statement he wanted some one else to hear it. Dr. Young told him he was in a bad condition and that he would like for him to make a statement, and Wright said, ‘If I die, just let Jim Rector go.’ Those are the words said, to the best of my knowledge. That was all he said.”

There is clearly nothing in this testimony showing that the deceased was then under a sense of impending dissolution. — Johnson’s Case, 102 Ala. 1, 16 South. 99; Dumas v. State, 159 Ala. 42, 49 South. 224, 133 Am. St. Rep. 17.

There was evidence on the part of the defendant tending to show that, before the defendant assaulted deceased with his knife, the deceased made a violent assault upon the defendant, knocking the defendant down with his fist, and after deceased knocked the defendant down deceased caught the defendant by his collar and assaulted him with a stick or a club; while the evidence on the part of the state tended to show that no' such assault was made by the deceased upon the defendant. As tending to corroborate the state’s theory, the court allowed the solicitor to inquire, on cross-examination of the defendant, as to the physical condition of the de ceased at the time of the assault; and, as shedding light on this, and to show defendant’s knowledge thereof, the court allowed the solicitor to ask the defendant the following question: “You knew that he had just recently gotten up from a spell of measles, didn’t you?” On cross-examination, leading questions are permissible, and the question was not subject ü> the objection urged against it by the defendant. If the deceased had in fact recently been ill, it was a circumstance the jury could look to, in connection with all the other evidence in the case, in determining whether or not the deceased assaulted the defendant, and, if so, in determining the.character and nature of the assault.

After the witness Jim Hankins had testified that he had lived in the community where the defendant lived for 45 years, and that he had known defendant all his life, that he knew his general reputation in the community where he lived and that it was bad, and that he knew defendant’s reputation in the community in which he lived for truth and veracity to be bad, and from his reputation he would not believe him on oath, and after the defendant had cross-examined this witness fully, he made a motion to exclude all the evidence of the witness on the sole ground that the witness had not qualified to testify as to the defendant’s general character or as to the defendant’s character for truth and veracity. The terms “general character” and “general reputation” are interchangeable, and mean the same thing in so far as these terms apply to the qualification of a witness to testify as to the general character of another person (Way v. State, 155 Ala. 63, 46 South. 273; McQueen v. State, 108 Ala. 54, 18 South. 843), and the testimony of this witness clearly qualified him to testify under this rule. There was no error in the ruling of the court in refusing to exclude his testimony.

It was not urged as an objection against the testimony of this witness that his testimony was not limited to a time prior to the killing of the deceased by the defendant, and no request was made so to limit the testimony. For like reasons, the court committed no error in admitting the testimony of the other character witnesses, as a proper predicate was laid in each case. After the defendant raised the point that the testimony should be limited to prove the character prior to the time of the killing of the deceased, the testimony was so limited by the court, and there is nothing in this respect shown by the record prejudicial to any of the defendant’s rights. — Robinson v. State, 5 Ala. App. 45, 59 South. 321.

Threats made by the defendant against the deceased on trial for homicide are always admissible as a circumstance to show malice, and the lapse of time does not render the evidence of such threats inadmissible. There was no error therefore in the admission of the testimony of Walter Jones of the threats made by the defendant against the deceased more than two years prior to the killing. — Pulliam v. State, 88 Ala. 1, 6 South. 839; Walker v. State, 85 Ala. 7, 4 South. 686, 7 Am. St. Rep. 17; 1 Mayf. Dig. 837.

Under the indictment in this case, the defendant was subject to conviction of any of the degrees of felonious homicide other than murder in the first degree. Although he may not have intended to kill the deceased, if he intentionally committed upon him an assault which in its nature was calculated to produce death and as a result thereof death ensued, he would be guilty of manslaughter in the first degree. — Lewis v. State, 96 Ala. 6, 11 South. 259, 38 Am. St. Rep. 75. Therefore charge 1, requiring an acquittal unless the jury believed beyond a reasonable doubt that the defendant intended to kill the deceased when he assaulted him, Avas properly refused.

Charge 2 was properly refused, because it Avas abstract, in that it assumed that the defendant was being assaulted by the deceased and others, while there is nothing in the evidence to authorize even an inference that any other person than the deceased assaulted the defendant. It was properly refused because it ignored the defendant’s duty to retreat.

Charge 3 was properly refused. There was evidence authorizing the defendant’s conviction of murder in the second degree. — Dennis v. State, 112 Ala. 64, 20 South. 925.

Justification for the refusal of charges 4, 5, 6, and 12 may be found in the following authorities: Stoball v. State, 116 Ala. 454, 23 South. 162; Williams v. State, 161 Ala. 52, 50 South. 59; James v. State, in MSS.; and Dennis v. State, supra.

Charge 7 is of a class that has been repeatedly condemned as submitting to the jury a question of law as to what constitutes self-defense.

Charge 8 is clearly an argument and an invasion of the province of the jury.

Charge 9 was in effect an instruction to the jury that unless the defendant was guilty of murder in the second degree he was guilty of no offense, while the evidence in the case Avas sufficient to sustain a conviction of any degree of felonious homicide less than murder in the first degree.

Charge 10 was properly refused because it singled out and gave undue prominence to a part of the testimony.

Charge 11 is manifestly erroneous, and was properly refused.

The insistence that the defendant was entitled to the affirmative charge because there was no proof of venue is clearly answered by circuit court rule of practice 35, which provides:

“Whenever the general charge is requested, predicated upon failure of proof as to time, venue, or any other point not involving a substantive right of recovery or defense, or because of some immaterial omission in the evidence of the plaintiff: or defendant, the trial court will not be put in error for refusing said charge, unless it appears upon appeal that the point upon which it was asked was brought to the attention of the trial court before the argument of the case was concluded. The trial court must permit proof of such omission at any time before the conclusion of the argument, upon such terms as the court may prescribe, not to exceed the cost of the term and a continuance of the case, one of both.”— Rule of Practice 35 (175 Ala. xxi).

There is nothing in the record in this case to show that the failure to prove the venue was called to the attention of the trial court, as required by this rule.

Furthermore, there was evidence in the case that the difficulty between the deceased and the defendant occurred within a mile and a quarter of Vernon, the county seat of Lamar county. That there is no point within a mile and a quarter of the county seat of Lamar county that is not within that county can easily be ascertained from the examination of any map of the state, and is a matter of common knowledge.

“Courts are not supposed to be ignorant of what everybody else is presumed to know. And what is thus known, juries are permitted to find, without specific proof being adduced in its support.” — Wall v. State, 78 Ala. 418; City Council v. Wright, 72 Ala. 411, 47 Am. Rep. 422; Watson v. State, 55 Ala. 158; Hendricks v. State, infra, 65 South. 682.

We find no error in the record, and the judgment of the circuit court is affirmed.

. Affirmed.