Smith v. State
| Citation | 31 So. 942,133 Ala. 73 |
| Parties | SMITH v. STATE. |
| Decision Date | 17 April 1902 |
| Court | Supreme Court of Alabama |
Appeal from circuit court, Limestone county; O. Kyle, Judge.
Robert Smith was convicted of murder in the second degree, and appeals. Reversed.
The appellant, Robert Smith, was jointly indicted with Frank Orr and Pink Batts for the murder of Robert Taylor. The defendant was tried separately, and the appellant in the present case was convicted of murder in the second degree and sentenced to the penitentiary for life. The defendant was arraigned the first week of the October term, 1901, in the circuit court of Limestone county, and, after interposing his plea of not guilty, the court drew from the jury box of the county the names of 30 persons to serve as special jurors, and set October 9, 1901, a day of the second week of the court, as the day for the trial of the cause. The court then ordered that said special jury so drawn and ordered summoned "together with the petit jurors drawn and summoned for the second week of this term of the court, shall constitute the venire from which the jury to try this cause shall be drawn." It was further ordered that a copy of the special jury, "together with a copy of the petit jury summoned for the second week of the term of the court," and also the copy of the indictment, be served upon the defendant at least one entire day before the day set for the trial. Before entering upon the trial the defendant moved the court to quash the venire in this case upon the following ground: Said list of jurors served upon the defendant as the venire to try his cause contained the names of W. M. Klowster and R. A. Stewart, whose names were drawn to serve as jurors for the second week of the term of the court, but it appears from the return of the sheriff that such jurors were never summoned. It was admitted that the facts stated in this motion were true. The court overruled the motion, and the defendant duly excepted. The state introduced as a witness one William Bass, who testified that, before the finding of the indictment, Robert Taylor was shot and killed in Limestone county; that the killing took place at an entertainment given on the plantation rented to said Robert Taylor; that, while the entertainment was going on, a pistol shot was heard, and Robert Taylor came out from his house and asked who fired the pistol; that, after this inquiry was made several times, one Frank Orr stated that he shot the pistol and would shoot Taylor; that Orr then pulled his pistol, and Taylor caught hold of it, and, while they were engaged in the scuffle over the pistol, Frank Orr called out to Pink Batts to go and shoot Taylor; that Pink Batts then ran up with a pistol in his hand, and that, while the scuffle was going on, Pink Batts shot Robert Taylor. This witness further testified that, when Orr had called to Batts to come and shoot Taylor, the defendant, Smith, started to the place of the difficulty with a pistol in his hand, and said "Let me get to him;" that this statement was made in a tone of voice loud enough to be heard by Pink Batts that the witness got before the defendant, and prevented him from going to the place of the difficulty. The defendant separately objected to each portion of the testimony of the witness Bass, relating to the statements made by Taylor and Orr, upon the ground that the defendant was not shown to have been present, and no conspiracy was shown to have existed between the defendant and Orr and Batts. The court overruled each of these objections, and the defendant separately excepted to each of such rulings. The evidence for the defendant tended to show that at the time of the difficulty when Batts shot Taylor, he (the defendant) did not have a pistol, and was not engaged in the difficulty. It was shown that Batts had, on the day of the present defendant's trial, been convicted. The state introduced in evidence the dying declarations made by the deceased, which were in words and figures as follows: ...
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