Hill v. State

• Decision Date: 30 June 1923
• Docket Number: 6 Div. 770.
• Parties: HILL v. STATE.
• Court: Alabama Supreme Court

97 So. 639

210 Ala. 221

HILL v. STATE.

6 Div. 770.

Supreme Court of Alabama

June 30, 1923

Rehearing Denied Oct. 18, 1923.

Appeal from Circuit Court, Tuscaloosa County; S. F. Hobbs, Judge.

Monroe Hill was convicted of murder in the first degree, and appeals. Affirmed.

These requests for instruction were refused to defendant (3) "I charge you, gentlemen of the jury, that you may consider the interest that any of the state's witnesses have in the conviction of the defendant in weighing the testimony of such witness."

(6) "The defendant is indicted for the murder of Trewitt and not for disposing of his dead body; any evidence of the disposition of the dead body would not affect the guilt of Monroe Hill in this case."

(10) "If the jury have a reasonable doubt of the truth or falsity of the evidence of the woman, Rilla Williams, who testified in this case, they will find the defendant not guilty."

(11) "Unless you are satisfied beyond a reasonable doubt by other evidence than that of Clyde Hill that this defendant and Monroe Hill, Hard Hill, and Clyde Hill had formed a conspiracy or agreement to kill Trewitt, you cannot consider the evidence of Clyde Hill in this case for any purpose whatever."

(12) "The court charges the jury that proof of contradictory statements or declarations on a material point made by the witness Rilla Williams may be sufficient to raise a reasonable doubt in the minds of the jury as to the truth of the testimony of said witness."

(15) "In this case the state insists that there was a conspiracy between Monroe Hill, Ed Hill, Hard Hill, and Clyde Hill to effect the death of Trewitt. It is your duty under the law to find this defendant not guilty, unless the evidence proves to you beyond a reasonable doubt and to a moral certainty that such conspiracy did exist between said persons to effect the death of said Trewitt at the time of his death. And the proof beyond a reasonable doubt must come from other evidence than from the evidence of Clyde Hill."

(16) "If the jury do not believe the evidence of Clyde Hill that Monroe Hill was present at the time Trewitt was killed or in sight, coming, and if they find no other evidence in the case connecting Monroe Hill with the killing than the evidence of Clyde Hill, they will find him not guilty although they may believe that Clyde Hill and Hard Hill were at the house of Monroe on the night preceding the alleged killing, and talked with Monroe, and that they went away in the direction in which a gun was heard to fire soon after their departure."

(17) "If the jury have a reasonable doubt that Ed Hill was present when Trewitt was killed, if he was killed, and also a reasonable doubt that he was at the house of his father Monroe Hill, on the Monday night before the day that Trewitt was missing and the Tuesday morning of the day that he was alleged to have been killed, then they must acquit the defendant."

(18) "Unless you are satisfied beyond a reasonable doubt and to a moral certainty by other evidence than of Clyde Hill that this defendant and Ed Hill, Hard Hill, and Clyde Hill had formed a conspiracy or agreement to kill Trewitt, and that such conspiracy and agreement was in existence at the time he was killed, if he was killed, then you must acquit the defendant."

(19) "If you believe from the evidence that Ed Hill was not at the house of his father, Monroe Hill, on the Monday night before the alleged killing of Trewitt, and the morning of the day of the alleged killing, then you are not authorized to consider the evidence of Clyde Hill for any purpose in this case."

(21) "If the jury have a reasonable doubt as to the truth of the evidence of Rilla Williams to the effect that Ed Hill was at the house of Monroe Hill on the Monday evening before the day it is alleged by the state that Trewitt was killed, and also if they further have a reasonable doubt that Ed Hill was at the house of Monroe Hill on the morning that Trewitt is alleged to have been killed, then they will find the defendant Monroe Hill not guilty."

(22) "The evidence of an accomplice should be received with great caution, and should also be looked upon with suspicion."

(24) "The court charges the jury that the only evidence introduced by the state to corroborate the evidence of Clyde Hill is evidence of Rilla Williams that Ed Hill was at the house of Monroe Hill on the Monday evening before and the Tuesday morning of the alleged killing of Trewitt, and that on such occasions there was a conversation or conversations between Monroe Hill, Ed Hill, Hard Hill and Clyde Hill, together with the circumstances of the sons, Hard and Clyde, returning to the house of Monroe Hill. And if they have a reasonable doubt that Ed Hill was at the house of Monroe Hill at the times so testified to by said witnesses, then they must find the defendant not guilty."

(27) "Clyde Hill having testified in this case, there is an implied understanding that he is not to be prosecuted for the offense of the killing of Earl Trewitt."

(29) "I charge you that in this case you may consider the fact that some of the witnesses are deputy sheriffs. The law allows you to weigh their evidence in that light."

(30) "The evidence of an accomplice should be received with great caution, and should also be looked upon with suspicion; it is the general rule that the accomplice is to be relieved from prosecution on consideration of his testifying, and all these matters should be considered by the jury in weighing his evidence."

Brown & Griffith, of Cullman, Ray & Cooner, of Jasper, and Edw. De Graffenried, Jr., and F. F. Windham, both of Tuscaloosa, for appellant.

Harwell G. Davis, Atty. Gen., and Lamar Field, Asst. Atty. Gen., for the State.

SOMERVILLE J.

The record proper recites that-

"The defendant in open court, before the oath is administered to the jury to try this

case, and before challenging any member of the venire, but after the court had questioned them touching their qualifications and competency as jurors, makes objection to the said jurors being put upon him for the trial of this case, because the qualifications and competency of the said jurors to try this case have not been ascertained as required by law."

A previous recital of the record shows that the court had examined and passed upon the general qualifications of all of the special veniremen. A recital in the bill of exceptions shows that "after the regular and special venire of jurors had been qualified by the court and examined touching their fitness to sit upon the cause now about to be tried," and after the above objection was filed, the court "does here and now offer to further qualify each and every member of the regular and special venire touching their qualifications and competency to sit on this case, and to ask any other legal qualifying question which may be suggested by the defense," and that "the defendant then and there, in open court, declined to make any suggestion." Defendant's objection to the jury was then overruled, and the ruling was clearly proper.

It is of course the duty of the trial judge to ascertain the qualifications of the jurors in every case. O'Rear v. State, 188 Ala. 71, 66 So. 81; Folkes v. State, 17 Ala. App. 119, 82 So. 567. It appears that in this case he ascertained, by inquiry of them, that they were not witnesses in the case; that they had no fixed opinion as to the defendant's guilt or innocence; that no one had sought to influence them; that they were not opposed to capital punishment; that they would convict on circumstantial evidence; and that none of them had been indicted for or convicted of a felony. If defendant was not satisfied with such an examination and qualification, he should have pointed out the omissions he objeected to, and requested the proper inquiries. James v. State, 53 Ala. 380, 387; Braham v. State, 143 Ala. 28, 33, 38 So. 919. Having failed to avail himself of the offer made by the trial judge and making no suggestion that any juror was in fact disqualified for any reason, his objection was properly overruled. Braham v. State, supra.

The fact that Ed Hill, a son of this defendant, and one of the four alleged conspirators in the killing, had been tried for this same murder on the same theory of conspiracy here presented, and acquitted, was patently irrelevant and inadmissible on the issue of this defendant's guilt, and the demurrer to defendant's plea setting up that acquittal in bar of his own conviction here was properly sustained. Such an acquittal is no more competent to show the defendant's innocence than that other's conviction would have been to show the defendant's guilt.

The most important witness for the state was Clyde Hill, the youngest son of the defendant, who testified that the murder charged was planned by the defendant and his two other sons, Ed and Hard, and the witness, and was executed by the three of them near defendant's home, whither they had lured their unsuspecting victim, the motive of the murder being their belief that he had betrayed them and caused their illicit stills to be raided and destroyed. This witness testified that the defendant, though not actually present, was an accessory to the murder, and that he aided in the preparation of the grave in which their intended victim was to be buried, and in the removal and concealment of the body in another grave afterwards.

The chief points of controversy throughout the trial were the existence of the alleged conspiracy, and the sufficiency of the evidence, outside of the testimony of the coconspirator and accomplice, Clyde Hill, to connect the defendant with the commission of the crime. We have examined the testimony with due care, and are convinced that the testimony of Clyde Hill was corroborated...