47 Ala. 9 (Ala. 1872), Johnson v. State

Citation:47 Ala. 9
Opinion Judge:PECK, C.J.
Attorney:THOS. G. JONES, for appellant, in support of the assignments of error, contended as follows: JOHN W. A. SANFORD, Attorney-General, and WATTS & TROY, contra.
Court:Supreme Court of Alabama

Page 9

47 Ala. 9 (Ala. 1872)




Supreme Court of Alabama

January Term, 1872


APPEAL from the City Court of Montgomery.

Tried before Hon. JOHN D. CUNNINGHAM.

A record on appeal in a capital case which states, as to the oath of the jury, merely that they "were duly sworn to well and truly try the issue joined between the state of Alabama and the defendant," is insufficient. As the oath administered is stated, the court cannot presume that the jury were otherwise sworn. The oath as stated leaves out an essential and substantive part of the oath required to be administered, to wit: "And a true verdict render according to the evidence. So help you God." This omission renders the verdict illegal and insufficient.

Joe Johnson, the appellant, having been indicted for the murder of Henry Walton, was tried, found guilty of murder in the first degree, and sentenced to be hung. Having reserved exceptions to various rulings of the court below, he brings the case to this court by appeal.

On the trial, after several persons had been selected as jurors, and after both the State and the defendant had each exhausted several peremptory challenges, the sheriff drew from the hat the name of R. A. Brady, who was not on the list of jurors, summoned for the trial, which had been served upon defendant. "The defendant made this fact known to the court, and objected to going any further with the trial upon said list of jurors summoned for his trial, and moved the court to quash said list and also to order another summoning of persons as jurors for the trial of defendant. Thereupon the sheriff stated that he summoned R. A. Brady as a juror for this trial, and instead of putting his name on the list which had been served on defendant, he (the sheriff) by mistake put I. A. Brady on the list served on defendant. The court overruled defendant's objection and motions, and directed the sheriff forthwith to summon another person as a juror and to put his name in the hat in place of said Brady, and directed the drawing to be suspended until this could be done; the court at the same time announcing to the defendant that he had the right to challenge peremptorily the juror thus summoned, in addition to the peremptory challenges allowed him by law. To each of these rulings and decisions defendant duly excepted."

After this, and before the jury was complete, the sheriff drew from the hat the name of Samuel Lacy, a well known resident citizen of Montgomery, and who was then known to be in the city of Montgomery, and whose name was on the list of jurors summoned for the trial of defendant and served upon him. Lacy being absent, the defendant insisted that the further drawing be suspended until Lacy was sent for, and moved the court to have said Lacy sent for and brought into court. The court thereupon ordered a fine assessed against Lacy, overruled defendant's motion, and ordered that the drawing of jurors from the hat continue until a jury was obtained. To each of the aforesaid rulings the defendant duly excepted."

The jury being complete, the defendant went to trial on plea of not guilty.

The evidence shows that Walton, who had the defendant employed on his plantation, received a message from defendant one Wednesday morning in the latter part of November, 1870, requesting him (Walton) "to come down here, [to Joe's cabin] and bring that stick he beat my wife with; I want to take it to town with me." On receiving this message Walton went into his house, and in a few minutes afterwards went down to Joe's cabin. Shortly after this a gun was heard to fire, and Walton was found some twenty steps or more from the door of Joe's cabin, lying upon his back, his knees drawn up, holding in one hand a loaded "Derringer pistol." He had been "shot in the right arm and side, sort of to the rear," with a load of ordinary sized bird-shot. This occurred about an hour "after sun-up," and Walton died between ten and eleven o'clock the same morning. There was no eye-witness to the shooting.

Lum Judkins, a witness for the State, who heard the gun fire, ran immediately to Walton, who was lying on the ground "hollering." Walton said to witness, "Joe has killed me. I was talking to him and he shot me, and he has killed me." To this witness replied, "I reckon not." Walton said, "Yes, I am bound to die." After this Walton was "toated" some distance to his house. He was shot about an "hour after sun-up," and died between ten and eleven o'clock the same morning.

Dr. Hill, a witness for the State, testified that he was a practicing physician of many years' experience, and had been sent for to see Walton, reaching his house about eight o'clock in the morning. At that time Walton was suffering greatly and gradually sinking. "Deceased, when offered medicine, would shake his head and say it is no use to do any thing, but would take the medicines given him. Witness did not tell Walton what he thought of his condition. Walton was in a dying condition when witness first saw him-- collapsed, and with very little or no pulse. Towards the last deceased's breathing was a little labored; he talked so he could be understood--showed a little effort. Ceasing to talk was the first symptom of immediate dissolution. All at once, two hours after witness saw him, Walton became speechless."

Thomas Merriwether, a witness for the State, testified that he lived about a mile from Walton's house, and reached there three quarters of an hour before Walton died. "Witness thought deceased in a dying condition as soon as he saw him. Deceased told witness, ' If they don't do something for me, I will die.' Witness heard deceased say nothing else about dying. Dr. Hill told deceased that it was necessary to know something about the difficulty, and deceased replied, 'Joe sent for me and I went down; when I got close to him he told me not to come closer, if I did he would shoot me. I wheeled to walk off, and he shot me.' This declaration was made about fifteen minutes before Walton died."

Dr. Hill was then recalled, and testified as to the declaration made by deceased, his testimony being the same as that of witness Merriwether. This declaration was made not long before Walton's death; and at the time it was made witness could perceive no pulse, and Walton's hands and feet were cold. Witness had given Walton opiates and whisky two or three times. In reply to a question by the prosecution, "if a man in Walton's condition was bound to know that he was bound to die," the witness was permitted, against defendant's objection, to answer, and stated that "he (witness) was satisfied in his own mind that deceased believed he would die."

All the foregoing testimony was given to the court as a basis for determining upon the admissibility of the dying declarations of deceased, but was delivered in the presence and hearing of the jury, who were cautioned by the court that none of the testimony relating to the declarations of deceased should be considered by the jury, except that which the court would thereafter expressly inform the jury should be considered by them.

The State introduced evidence tending to show, that a day or so before the killing, the defendant, who had been absent from the place for several days, and was then on his way to Walton's place, was seen to take a drink, and on being asked by a witness if he would not give some of it to one Jerry Lucas, remarked, "Uncle Jerry can not drink this liquor. I can. There is hell in me." There was some evidence tending to show that about this time defendant had some trouble with his bowels, and his physician, the witness Dr. Hill, had given him a prescription of some sort of bitters. There was evidence tending to show that on Sunday before the killing, which occurred on the next Wednesday, Walton was seen coming out of his house, shaking his stick, which was a good sized walking cane, at some one, and saying, "When Joe comes tell him I'll give him the same." The witness who testified to this did not know to whom Walton was talking, and had never informed Joe of it. The State also introduced the clothing worn by Walton at the time he was shot.

After this testimony was delivered to the jury the State announced that it had closed its evidence, except evidence in rebuttal; and "thereupon the defendant moved the court separately and successively to exclude each of the dying declarations of deceased, as testified to by the foregoing witnesses. The counsel for the State asked the court not to exclude the evidence of the dying declarations until authorities could be submitted to the court, they believing that Alabama authorities could be found which would be decisive of the motions. Thereupon the court remarked, that after the defendant's testimony was all introduced, but before the argument was commenced to the jury, it would decide said motions." The defendant insisted that the court should decide his motions then, and before proceeding further with the case, but the court refused to decide said motions then or at any earlier period than it had before indicated; and defendant "duly excepted to each of said refusals, declinings, and rulings of the court."

The defendant was then directed to proceed with the case, and he again insisted to the court that he should not be compelled to proceed with the examination of his witnesses until his several motions to exclude the declarations of deceased, &c., were decided, as he could not know what to meet as to the declarations above referred to, or whether they would be in evidence or not; the court, however, required him to proceed with the examination of his witnesses, and defendant duly excepted.

The defendant then introduced witnesses who proved the nature of the message sent by defendant to Walton, as already stated, and the fact that Walton was found, immediately after the shooting, a few steps from Joe's cabin, with a loaded...

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