Sivut kuvina
PDF
ePub

[Sanders v. The State.]

Besides, the conduct of defendant and his brother, jointly indicted with him, was relevant and material to show motive, and as evidence of a conspiracy between them of willingness to engage in mortal combat with deceased-of preparation for and determination to arm themselves for the deadly combat and to aid and abet each other therein.

"Evidence of motive whether proceeding from malice, or other cause, is always admissible for the prosecution as making a conspiracy probable." -Caddell v. State, 129 Ala. 57; Wright Cr. Con., 214. See pp. 39, 40, 41. 48, 55, 56.

It was clearly shown by the evidence that no improper communication was made to, or improper influence exerted on, the jurors, by their separation under the charge of the bailiff, or in the conversation had with two of them during the trial; and all presumptions to the contrary were conclusively rebutted.-Nabors v. Stote, 120 Ala. 323; Butler v. State, 72 Ala. 179; State v. Veillon, 29 So. Rep. 883; State v. Scanlon, 28 So. Rep. 212.

MCCLELLAN, C. J.-It has quite recently been determined that an order that the sheriff "serve the defendant with a copy of a list of the names of the persons constituting the jurors" for the trial of a capital case is sufficient under section 5273 of the Code, which requires the service of a copy of the venire for such a trial.-Ford v. State, 129 Ala. 16. This ruling necessarily involves the further proposition that a compliance with such order, the service of a list of such jurors, is in legal substance and effect sufficient under that section, though the paper served may not be a full copy of the venire, by which is meant the writ issued by the clerk to the sheriff for the summoning of the special jurors and the service upon the defendant of a copy thereof containing also the names of the regular jurors for the week of the trial-in that the list so served is not in the form of a mandate and is not signed by the clerk. That is the case at bar. A perfect list of the jurors for his trial was served on the defendant. It showed on its face that it was such list, it was served, as shown by the return of the sheriff, upon the defend

[Sanders v. The State.]

addressed to him by Mullen, viz., "I aint going home, I am going to work."

Under all the circumstances of this case, it was palpably competent for the State to prove that after this quarrel the defendant left the place where the quarrel occurred, presumably going home to dinner, and that on his return in the afternoon he had a pistol, the evidence tending to show that he did not have the weapon before or at the time of the quarrel; such testimony having a legitimate tendency to show preparation for the homicide of the next day, and premeditation in respect of it. So the court did not err in permitting the State to ask this and other witnesses whether the defendant had a pistol on his return to the work in the afternoon of the day of the quarrel. And it was competent for the State to prove that defendant's brother, John Sanders, who was present during the quarrel between Mullen and Luke, and who was engaged in the difficulty the following day in which Mullen was killed, had a pistol when he returned to the work in the afternoon of the first day. This also went to show community of design on the part of the brothers, and joint preparation, and premeditation.

The witness Charley McLaughlin having on crossexamination by the State testified that the defendant, on the occasion of the quarrel between him and Mullen the day before the homicide, said that "he would die and go to hell before he would take any more of Mullen's foolishness," the State against defendant's objection was allowed to ask him this question: "Didn't John Green [Sanders] say at the same time the same thing?" Witness replied: "He did not." The State then asked this question: "Did you not so testify beforc C. C. Johnston acting as coroner in this case?" And to this the witness answered: "I did not so testify before said C. C. Johnston, coroner." It is clear that the defendant was not prejudiced by this evidence. The effort of the State was to prove that defendant's brother John Green also used the threatening language which the witness had deposed to defendant's having used. The witness swore to the contrary; and when he was asked whether he had not testified differently on another oc

[Sanders v. The State.]

casion, he swore that he had not. All that he said in this connection was favorable to the defendant, and the court committed no error of which he can complain by allowing the testimony to go to the jury. In the brief of appellant's counsel this witness is confused with the witness Charlie Sanders, and the further mistake is made of ascribing to Sanders the statement that he did so testify before the coroner. Charlie Sanders did not refer to this matter at all in his testimony, and Charley McLaughlin, the only witness who spoke of it, swore, as we have seen, that he did not testify before Johnston, the coroner, that John Green said he would die and go to hell before he would take any more of Mullen's foolishness.

The defendant fled the country immediately after the homicide. It was sought to be proved in his behalf as tending to show that his flight was not due to consciousness of guilt, that three weeks later a mob was formed and an attempt was made by it to lynch John Green Sanders jointly indicted with him and two other men charged with aiding defendant to escape, all of whom were then confined in the county jail. The court properly excluded this evidence. It is not conceivable that the formation and actions of this mob three weeks after defendant's flight could have been the cause of that flight, or that evidence in that regard could have legitimately tended to show that defendant's flight was not due to consciousness of guilt.

It was necessary that the indictment should be taken by the jury on their retirement to consider of their verdict. The fact that John Green Sanders was also charged in the same indictment jointly with this defendant and that the verdict of the jury which tried bim severally the week before, finding him guilty of murder in the first degree, was written on the indictment neither emasculated the indictment as to Luke Sanders, this defendant, nor avoided the legal necessity for the paper being with the jury in his case when they retired to make up their verdict.

The rulings of the court on requests for instructions are not discussed in the brief for appellant. We will, therefore, content ourselves with saying here that they have been duly considered and found to be free from

[Davis v. The State.1

error.

The judgment of the circuit court must be affirmed. The day for the execution of the sentence of death imposed upon the defendant in the court below having passed, it will be here ordered and adjudged that said sentence be executed on Friday the 7th day of February, 1902.

131 10 135 22

131 10

136 266

131 10

139 131

131 10

140 311

131 10

142 22

131 10

143 92

Davis v. The State.

Indictment for Murder.

1. Pleading and practice; when motion to quash comes too late. In the trial of a criminal case, after the plea to the merits has been filed, a motion to quash the indictment and a plea in abatement come too late.

2. Same; when refusal of court to allow withdrawal of the plea to the merits not revisable. - Whether the defendant in a criminal case shall be permitted to withdraw his plea of not guilty and interpose a plea in abatement, is a matter addressed to the discretion of the trial court and is not revisable on appeal.

3. Organization of jury; repeal of former statute by reason of conflict with subsequent act. The provisions of the statute regulating the drawing and organization of juries, that "all laws and parts of laws general and special conflicting with the provisions of this act be and the same are hereby repealed," has the effect of repealing all prior acts providing for the drawing and organization of juries which are in conflict with the provisions of the later act.

4. Evidence; general motion

to

exclude properly overruled. When a motion to exclude testimony is general and includes both legal and illegal evidence, it is not error for the trial court to overrule such motion.

5. Same; admissibility of evidence. Where on the trial of a criminal case, during the cross examination of a witness introduced by the State, the defendant elicits from him a part of a conversation had with a third party, it is competent for the State upon rebuttal examination of said witness, to show the entire conversation between him and saia third person.

[Davis v. The State.]

6. Same; witness should not be compelled to incriminate himself. An accused person can not be compelled to do or say anything that would tend to criminate himself, and his refusal to do so can not be proved as a circumstance against him.

7. Charge of court to jury; reasonable doubt. In the trial of a criminal case, a charge is erroneous and properly refused which instructs the jury that "if after a careful and cautious examination of all the testimony in the case there is a reasonable doubt of defendant's guilt, in the mind of either of the jurors, you should acquit the defendant."

8. Same; same. -A charge which instructs the jury that "a reasonable doubt may exist though there is no probability of defendant's innocence from the testimony, and if the jury not abiding conviction to a moral certainty of this guilt, then they should find him not guilty," would assert a correct proposition of law and should be given at the request of the defendant, if the word "have" was inserted after the word "jury" and before the word "not."

APPEAL from the Circuit Court of Lowndes.
Tried before the Hon. J. C.RICHARDSON.

The appellant, Mose Davis, was indicted and tried for the murder of Hannah Brown, was convicted of murder in the first degree and sentenced to be hung.

Upon the day the cause was called for trial, the defendant made a motion to quash the indictment. Upon a former day of the term the defendant had been arraigned and pleaded not guilty. This motion to quash the indictment was overruled, and to this ruling the defendant duly excepted. Thereupon the defendant moved the court to allow him to withdraw the plea of not guilty and file a plea in abatement. The court refused to allow the defendant to withdraw the plea of not guilty and to file a plea in abatement, and to this ruling the defendant duly excepted. The defendant thereupon moved the court to quash the venire from which the jury was selected which tried the cause. The grounds of this motion are sufficiently shown in the opinion. The court overruled the motion, and the defendant duly excepted.

There was evidence introduced on the part of the State tending to show that the defendant had killed Hannah *Brown by shooting her with a pistol; one of the wit

« EdellinenJatka »