7 So. 302 (Ala. 1890), Hawes v. State

Citation:7 So. 302, 88 Ala. 37
Opinion Judge:McCLELLAN, J.
Party Name:HAWES v. STATE.
Attorney:E. T. Taliaferro and J. J. Altman, for appellant. W. L. Martin, Atty. Gen., and Jas. E. Hawkins, for the State.
Case Date:January 13, 1890
Court:Supreme Court of Alabama
 
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Page 302

7 So. 302 (Ala. 1890)

88 Ala. 37

HAWES

v.

STATE.

Supreme Court of Alabama

January 13, 1890

Appeal from criminal court, Jefferson county; S.E. GREENE, Judge.

R. R. Hawes, or Dick Hawes, was indicted for the murder of his young daughter, May Hawes, "by drowning her, or by smothering her, or by strangling her, or by some other means unknown to the grand jury;" and at the same time two other indictments were found against him, one charging him with the murder of his wife, Mrs. Emma Hawes, and the other with the murder of another daughter, Irene Hawes. The dead body of May Hawes was found floating on the water in East lake, near the city of Birmingham, on Tuesday evening, December 4, 1888; and the verdict of the coroner's jury was that she came to her death Monday evening or night, December 3d, at the hands of her father. Defendant was married in Columbus, Miss., on Wednesday, December 5th, to Miss Mays Story; and on his return to Birmingham with his wife, the next day, he was arrested on the charge of murder. Mrs. Emma Hawes and Irene, a daughter younger than May, had also disappeared, and their bodies were found several days afterwards, in the water at Lake View, near Birmingham.

The three indictments were returned January 21, 1889. On January 24th defendant filed an application for a change of venue in each of the cases, which was overruled on January 28th, and an exception duly reserved by defendant. A second application was made on February 8th, but the cases were continued from March 4th to April 22d; and on that day a third application for a change of venue was made, which the court refused, and defendant duly excepted.

Being arraigned on the first indictment, defendant moved to quash it, because the grand jury which presented it "was not then a legally constituted grand jury, because said grand jury was ordered by the court to be summoned, and was summoned, to appear and serve as a grand jury for one week, commencing on the 7th day of January, 1889, whereas said indictment was presented and filed in court on the 21st day of January, after the expiration of the time for which said grand jury had been summoned to serve." The venire for the grand jurors was as follows: "You are hereby commanded to summon the following named persons, to appear and serve as grand jurors at the January term of the criminal court of Jefferson county, beginning on the 7th day of January, 1889, to serve as grand jurors for the week beginning on the first Monday in January, that being the 7th day of January, 1889; they having been drawn according to law to serve as grand jurors for said term of said court." The court overruled the motion to quash, and defendant excepted. Defendant then moved to quash the special venire of petit jurors summoned for the trial of this and other capital cases, on the grounds (1) that the special venire was ordered and drawn under the provisions of a law enacted after the commission of the offense, and after the finding of the indictment; and (2) because there was no record of the order, the minutes not having been written up by the clerk. The court also overruled this motion, and defendant excepted.

During the organization of the jury, the name of E. A. Penn having been drawn, he was examined under oath by the court touching his qualifications as a juror, was declared competent, and was accepted by the state. Defendant then asked the court to "ask him whether or not, up to this time, he has had an opinion, which would bias his verdict, as to the guilt or innocence of the defendant." The court declined to ask this question, and defendant excepted, and he then challenged said juror peremptorily. After 12 jurors had been chosen and sworn to try the case according to law, and before the indictment was read to them, G. B. Gordon, one of the 12 jurors chosen, applied to the court to be excused, because of the sickness of his wife; and Dr. A. M. Boland, a practicing physician in Birmingham, being sworn, stated that the wife of said Gordon was under his treatment, that she was suffering from a complication of diseases, and that her safety, comfort, and life required the presence and attendance of her husband. The court thereupon excused said juror, and the defendant excepted. After said juror had been discharged, defendant then and there moved the court to discharge him; which motion was overruled by the court, and defendant excepted.

Defendant objected to all evidence showing, or tending to show, the death of Mrs. Hawes and Irene, and any and all circumstances connected with their death, and excepted to the overruling of these objections.

The prosecution offered in evidence what purported to be a transcript of the bond and marriage license authorizing the marriage of R. R. Hawes and Mays Story, with the return of the officiating minister, which is certified by J. T. Armstrong, clerk and notary public. The license was issued on December 5th, and the minister's return stated that the marriage was celebrated on that day. The certificate of the clerk was in these words: "I, J. T. Armstrong, clerk of the circuit court in and for said county, [Lowndes,] and ex officio a notary public, certify that the above and annexed pages contain a true and perfect copy of the original affidavit, bond, marriage license, and official certificate of minister, as the same appears of record in my office. Witness my hand and seal," etc. Defendant objected to the admission of this transcript as evidence, "as being irrelevant, illegal, and incompetent," and excepted to the overruling of his objection. The prosecution offered in evidence, also, in this connection, the Revised Code of Mississippi of 1880 which purports on its face to be published by authority of the state, and which was admitted to be "the last Code of that state," and particularly sections 1148, 1149, and 1492, as therein contained. These two former sections relate to the issue and return of marriage licenses, and the last section (1492) makes the clerk of the circuit court "the legal custodian of the records and papers relating to marriage licenses and certificates of marriage." Defendant objected to the admission of this Code as evidence, and duly excepted to the overruling by the court of his objection.

J. T. Glover was introduced as a witness for the state, and testified that he was confidential clerk, in the office of Hewitt, Walker & Porter; that he knew defendant, and first saw him early in September; that Hawes came into the office, and asked him if he was a lawyer, and he answered that he was not; and that Hawes said that the object of his visit was to get a divorce. Defendant objected to any evidence by said Glover, showing any conversation between him and witness concerning a divorce proceeding, because witness was a confidential clerk of the law firm whom defendant went to consult; but the court overruled this objection, and defendant excepted. The witness continued: "Hawes said he wanted a divorce as soon as he could get it." Nothing was said to him by Hawes about where his wife was, but he did say that he had instituted proceedings of divorce in Atlanta two or three years ago, and wanted to know if they could be continued here. Defendant then moved the court to exclude from the jury "the whole of the testimony of this witness, on the ground that it was a privileged and confidential mission," and he excepted to the overruling of this motion.

J. I. Glover, a witness for the defense, testified, on cross-examination: "I have heard for the last few years that he [defendant] frequently had difficulties with and struck his wife." Defendant objected to the introduction of this last statement as evidence, and excepted to the court's overruling his objection.

The court thus charged the jury as to the different degrees of felonious homicide: "There are four degrees of felonious homicide,-murder in the first degree, murder in the second degree, manslaughter in the first degree, and manslaughter in the second degree. Murder in the first degree is any willful, deliberate, malicious, and premeditated killing of a human being. 'Willful' means governed by the will; without yielding to reason. 'Deliberate' means formed with deliberation, in contradistinction to a sudden, rash act. 'Malicious' means with fixed hate, or done with intentions or motives, not the result of sudden passion. 'Premeditated' means contrived or designed previously. The law fixes no particular length of time these elements shall be shown to have existed in the mind. If they co-exist but a moment before, and prompt the fatal act, it is sufficient. There must have been a previously formed purpose to take the life of the person slain, and death must be the result of the voluntary, intentional employment of means calculated to produce it. Murder in the second degree is the unlawful and malicious killing of a human being. The distinction between the two degrees of murder is the deliberation and premeditation which characterizes murder in the first degree. Manslaughter is the unlawful killing of a human being, without malice, either express or implied. You will observe that in manslaughter the ingredient of malice is wanting. Manslaughter, by voluntarily depriving a human being of life, is manslaughter in the first degree; and manslaughter committed under any other circumstances is manslaughter in the second degree."

Defendant excepted to this part of the charge given by the court, and he also excepted to the following portions: "(1) The state claims that the deceased came to her death on Monday night, December 3, 1888; that the defendant was seen that night at the house of Fannie Bryant, [a negro woman who was implicated in the murders, was indicted, tried, convicted, and sentenced to the penitentiary for life, after the trial of this case,] where he...

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