Andrews v. State

• Decision Date: 04 February 1909
• Citation: 48 So. 858,159 Ala. 14
• Parties: ANDREWS v. STATE.
• Court: Alabama Supreme Court

48 So. 858

159 Ala. 14

ANDREWS v. STATE.

Supreme Court of Alabama

February 4, 1909

Appeal from City Court of Bessemer; William Jackson, Judge.

John Andrews was convicted of murder, and he appeals. Reversed and remanded.

The record shows the organization of the criminal court of Jefferson county, the drawing of the grand jury for that term, and the organization of the city court of Bessemer. It is further shown by the certiorari that the city court of Birmingham was organized and the grand jury ordered to turn in report of May 14, 1906. It further shows that on the 17th day of September, 1907, an order was entered in the criminal court of Birmingham, transferring said cause from the criminal court of Jefferson county to the city court of Bessemer, and an order to transmit all papers in the cause to the city court of Bessemer, together with a transcript of the minutes showing the organization of the criminal court of Jefferson county and of the grand jury. Another order is shown, made on December 9, 1907, in the city court of Bessemer, for drawing jurors to try capital cases in the city court of Bessemer, beginning on the 6th day of January, 1908. The indictment appears to have been preferred and filed on the 21st day of April, 1906, and a bond made by the defendant for his appearance at the next term of the criminal court of Jefferson county, and from term to term, etc., approved November 24, 1906. The certificate of the clerk of the criminal court of Jefferson county transferring the cause and the minutes, are dated May 5, 1908.

It was shown that the juror Lynn did not live within the district over which the city court of Bessemer had jurisdiction. In impaneling the regular jurors for the week in which the trial of this cause was set, for good cause shown, the court excused Brown and Betts, who had been summoned as jurors. The defendant entered a motion to quash a venire, and in that connection offered to show by Capt. Crook that the jurors were drawn from the box before any were selected for grand or petit jurors, and that the grand jurors were then selected and placed upon the grand jury venire, and the names remaining were placed upon and made to constitute the venire for the petit jury.

The record shows that Lawrence Lipscomb was next called by the defendant, and stated that he was engaged as clerk at the ice factory, and had been living in Bessemer 18 or 20 years, and knew the defendant's general character to be good. On cross-examination he stated that he based this opinion on his general observation of defendant, and on motion of the state this evidence was excluded. This same witness was asked as to the character and condition of the pistols which were introduced in evidence on the preliminary trial as the pistols used by the different parties to the shooting; but on objection by the state the questions and answers were excluded. On the cross-examination of the defendant, he was asked by the state concerning various difficulties he had been in, and in that connection was asked the question which is set out in the opinion, to which objection was made and overruled.

The following charges were refused to the defendant:

"(1) If there is a reasonable doubt as to whether the killing was done with malice, the defendant cannot be convicted of murder at all.

"(2) The court charges that the state must show by the evidence beyond a reasonable doubt all the constituents of the crime charged before the defendant is called upon to explain any circumstances connected therewith, or to make any defense.

"(3) If the defendant was attacked in his livery stable by the deceased with a deadly weapon, the defendant was under no duty to retreat from his antagonist.

"(4) The court instructs the jury that one feloniously assaulted in his own place of business is not bound to retreat, even though by so doing he might secure his safety; but he may stand his ground, and take his assailant's life, if it becomes necessary, and the homicide is justified.

"(5) The court instructs the jury that homicide is justifiable when committed by one into whose place of business deceased was endeavoring in a violent manner to force himself, with the intention of unlawfully assaulting the owner thereof.

"(6) The evidence which shows the killing of one person by another with a deadly weapon may rebut the presumption of malice arising from the use of such weapon.

"(7) The court instructs the jury that where one without fault is attacked by another, and he kills his assailant, if the circumstances furnish reasonable ground for apprehending a design to take his life or do him some great bodily harm, and for believing the danger imminent, and that such design will be accomplished, the homicide is justifiable, though it may turn out that the appearance was false, and that there was in fact no such design, nor any danger of its being accomplished.

"(8) The law demands that your minds be so satisfied by evidence that no reasonable doubt exists in you but that your finding is correct, and the defendant guilty of that charge; and if you are not satisfied in this way you should not convict."

The other charges requested were on self-defense, and need not be specially set out.

Allen & Bell and Thomas T. Huey, for appellant.

Alexander M. Garber, Atty. Gen., for the State.

SIMPSON J.

The appellant was convicted of the crime of murder, and his punishment fixed at death.

The city court of Bessemer was created by the act approved February 28, 1901 (Loc. Acts 1900-01, p. 1854; Loc. Laws Jefferson Co. [by Weakley] p. 115). Section 16 of that act provides that cases then or thereafter pending in the criminal court of Jefferson county "may be, by consent of the parties thereto, transferred to said city court of Bessemer"; and section 25 provides that in all cases where a party is arrested on an indictment, "for an offense arising or committed by him in said district, * * * if said warrant or capias or other process is returnable to the criminal court of Jefferson county, and the defendant makes bond for his appearance, his case shall be removed to said city court of Bessemer, and the papers shall thereupon become returnable to said city court of Bessemer, and the case triable there." Section 26 provides that, in all cases where the defendant fails or refuses to make bond at the time of his arrest for an offense committed in said district, he shall be confined in the county jail at Birmingham, and his case stand for trial in the criminal court of Jefferson county, provided that "if any person who is confined in said jail for an offense committed in said district, within the jurisdiction of said city court, shall make a good and sufficient bond for his appearance at the said city court, to answer the charge preferred against him, it shall be the duty of the sheriff to immediately return said bond to the clerk of the criminal court of Jefferson county, and the case shall thereupon stand removed to the city court," and it shall be the duty of the clerk to transmit papers, etc.

It is first insisted by appellant that the record shows that the indictment in this case was found in said criminal court of Jefferson county, in April, 1906, and, as shown by the transcript, was not certified to the city court of Bessemer until the 14th day of February, 1908, after this case had been tried, and the defendant convicted, on the 6th day of January, 1908, and that consequently, at the time of trial, the city court of Bessemer was without jurisdiction to try this case. The transcript from the criminal court of Jefferson county, in the record, shows that, on the motion of the defendant, his case was transferred to the city court of Bessemer on September 17, 1907. We think it sufficiently appears that this case was transferred to said city court before the trial of the same, and the indictment was in court. Dudley v. Birmingham, etc., Co., 139 Ala. 453, 461, 36 So. 700. The court had jurisdiction. In the case of Rose v. State, 117 Ala. 77, 79, 23 So. 638, 639, the record failed to show "anything touching the transfer of this cause."

The organization of the trial court sufficiently appears from the transcript brought up by certiorari. While it is true that the name of the court is not stated at the head of the minute entry as to the arraignment of the defendant and the fixing of the day for his trial, yet it shows that Hon. Wm. Jackson was presiding, and in connection with the certificate of the clerk at the end of the transcript it sufficiently shows that the order then made was by the city court of Bessemer.

The return to the certiorari shows also that the special jurors were drawn according to law. Loc. Acts Jefferson Co. (Act Feb. 11, 1901) 705. It appears from the record that the excusing of the jurors Brown and Betts by the court was upon the impaneling of the juries at the organization of the court, which was within the discretion of the court, and not error.

Section 33 of the act creating said city court of Bessemer provides that the petit jurors "shall be drawn and summoned from said district." Consequently it was error to place the juror Lynn on said jury, who was shown to live outside said district.

The act provides (section 33) that, "in completing the juries for the trial of any capital case, the judge of said city court shall draw, under the provisions of this act, the names of persons subject to jury duty, residing within two miles of the place where said court is held in the city of Bessemer." Consequently there was no error in placing upon the jury Lon Tyler, who lived more than two miles from the courthouse at Birmingham, but within two miles of Bessemer; but there was error in placing upon the panel Bob Vance, who resided within two...