Adams v. State

• Decision Date: 15 April 1902
• Citation: 31 So. 851,133 Ala. 166
• Parties: ADAMS v. STATE.
• Court: Alabama Supreme Court

31 So. 851

133 Ala. 166

ADAMS v. STATE.

Supreme Court of Alabama

April 15, 1902

Appeal from circuit court, Pike county; John P. Hubbard, Judge.

Warren Adams was convicted of manslaughter in the first degree, and appeals. Reversed.

The defendant moved the court to quash the venire in this case upon the following grounds: "(1) Said venire was not drawn in accordance with the law; (2) this defendant was arraigned on Monday, the 2d day of September, 1901, and at the same time was arraigned one Dan McGuire, also charged with murder in the first degree; that on said September 2d 1901, the court ordered that the clerk of said court should draw from jury box 45 names, which, together with the regular panel of jurors for this week of said circuit court, should constitute the special venire, both in the case of State against Adams and the case of State against McGuire, both of whom were under indictment for capital offenses, but separate and distinct, and in no way connected, one with the other and said venire was drawn contrary to law; (3) because there was not a venire drawn for this case only, but said venire was drawn for this case and also case of State against McGuire, and it is attempted in this case to make said one venire answer for and constitute the venire for each and both of said two cases, and it is contrary to law; (4) no venire was drawn for this case alone, as required by law, but said venire was drawn for the case of this defendant, and also that of State against McGuire, and said venire constitute the venire for both of said cases, and this defendant moves to quash the same." The motion to quash was overruled, and the defendant duly excepted. Before the drawing of the jury the defendant objected to being required to select a jury from said venire, and objected to being placed on trial in said cause, upon the following grounds: "(1) Said venire in said cause was drawn as follows: The court had, on the 2d September, 1901, this defendant and one Dan McGuire, both charged with murder in the first degree, arraigned, and, when arraigned, each pleaded not guilty. The court then ordered the clerk of said court to draw from jury box 45 names, which said 45 names were drawn to serve for cases of State against Adams and also State against McGuire, said 45 names together with the regular panel of jurors for this the second week of said court to constitute the venire for both cases of State against Adams and State against McGuire; and the court then set said two cases for same day, to wit, Monday, September 9th, 1901, and said 45 names so drawn, together with the regular panel of jurors for this week, does constitute the venire for both of said cases. (2) And this defendant further objects to being placed on trial, and to said venire, and says that twelve of those so constituting the venire in said two cases are now engaged in the trial of the case of State against McGuire, and cannot now be called to serve upon his case, and this defendant makes oath that the facts herein stated are true,--best of his knowledge and belief. Sworn to and subscribed before me." Each of these objections was overruled, and the defendant separately excepted. On the trial of the cause, the state introduced evidence tending to show that the defendant was guilty as charged in the indictment. There was evidence introduced in behalf of the defendant tending to show that the homicide was committed in self-defense. The other facts of the case are sufficiently stated in the opinion. Upon the introduction of all the evidence, the defendant requested the court to give the following charges, and separately excepted to its refusal to do so (the charges are copied in the order in which they are copied in the bill of exceptions): "(14) If the jury have a reasonable doubt as to whether the killing was done deliberately, or as to whether it was done premeditatively then they cannot find the defendant guilty of murder in the first degree; and if they have a reasonable doubt as to whether the killing was done in malice, then they cannot find the defendant guilty of murder in either degree, but only of manslaughter, at most; and if, after considering all the evidence, the jury have a reasonable doubt as to defendant's guilt of manslaughter, arising out of all the evidence, then they should find the defendant not guilty of any offense." "(9) In this cause the burden of proof is not shifted from the state to the defendant, and the presumption of innocence abides with the defendant until all the evidence in the cause convinces the jury to a moral certainty that the defendant cannot be guiltless." "(13) No greater burden rests upon the defendant when tried for a criminal offense than to create a reasonable doubt in the minds of the jury of his guilt, and he is entitled to it under the defense of self-defense, or any other ground of defense." "(1) I charge you gentlemen, that when no more appears from the evidence in a case than an unlawful and intentional killing of a human being, although without excuse or mitigation, the homicide is such a case to be no more than murder in the second degree." "(22) If the conduct of the defendant in this case was consistent with his innocence, then he is not guilty of any offense." "(6) The court charges the jury that, though evidence tending to show flight is a matter to be considered by the jury, yet it is of weak and inconclusive character; it may not be evidence of guilt at all." "(8) If one assaulted suddenly and under the maddening influence of blows slays his assailant, and there is nothing else in the transaction, this is manslaughter and not murder."

Worthy & Gardner, for appellant.

Chas. G. Brown, Atty. Gen., for the State.

DOWDELL J.

Section 5004 of the Criminal Code, under which the special venire in this case was drawn, provides as follows: "When any capital case or cases stand for trial, the court shall, at least one entire day before the same are set for trial, cause the box containing the names of jurors to be brought into the court-room, and after having the same well shaken, the presiding judge shall then and there publicly draw therefrom not less than twenty-five nor more than fifty of such names for each capital case [italics are ours, and for purposes that will appear hereafter], a list of which shall be immediately made out by the clerk of the court and an order issued to the sheriff to summon the persons so drawn to appear upon the day set for the trial, in like manner and under like penalties as he is required to summon grand and petit jurors. If the names in the jury-box should be exhausted before the completion of the drawing of such special jurors, the court shall direct the sheriff to summon from the qualified citizens of the county, the specified number of persons necessary to complete the number of special jurors ordered by the court." At the time of setting a day for the trial of the defendant there were two capital cases pending in the circuit court,--that of the defendant and one of the State against McGuire. These defendants were separately indicted, and for separate and distinct felonies. Both cases were, by order of the court, set for trial on the same day, and by order of the court only one drawing of special jurors was had, which, together with the regular jurors drawn and summoned for the week of the trial constituted one and the same special venire for the trial of both cases. On the day of the trial a jury of 12 was first selected from the...