Andrews v. State

• Citation: 44 So. 696,152 Ala. 16
• Parties: ANDREWS v. STATE.
• Decision Date: 13 June 1907
• Court: Alabama Supreme Court

44 So. 696

152 Ala. 16

ANDREWS v. STATE.

Supreme Court of Alabama

June 13, 1907

Appeal from Circuit Court, Wilcox County; B. M. Miller, Judge.

Bob Andrews appeals from a conviction of murder in the first degree. Reversed and remanded.

The defendant, Bob Andrews, was jointly indicted with John Andrews for killing Bama Andrews, the wife of Jim Andrews. It seems from the record that Jim Andrews was also found dead whether from violence at the hands of other parties, or from self-inflicted violence, does not clearly appear. The defendant attempted to prove by the witness McKinney that the witness A. G. Andrews told him, on the night of the killing and immediately after the killing, that he (Andrews) did not know who did the shooting or who killed Bama Andrews. He also offered to show by the same witness that on the evening before the killing Jim Andrews attempted to kill the witness and that he was drunk and in a mood to kill people. The state was allowed to prove circumstances as to the killing of James Andrews, to which exception was reserved. What is said in reference to the introduction of the telegram, and the other facts in the case, sufficiently appear in the opinion of the court. The motion to quash the venire, and the motion to challenge the jurors, and the grounds on which the same are based, sufficiently appear in the opinion.

The following charges were refused to the defendant: "(4) The court charges the jury a probability that some other person may have done this shooting is sufficient to create a reasonable doubt of the guilt of the defendant, and therefore for his acquittal. (5) The court charges the jury that the humane provision of the law is that upon the evidence there should not be a conviction, unless to a moral certainty it excludes every hypothesis other than that of the guilt of the accused. No matter how strong may be the facts, if they can be reconciled with the theory that some other person may have done the act, then the guilt of the accused is not shown by that full measure of proof which the law requires."

The defendant demanded a severance, and was tried alone; the trial resulting in a conviction of murder in the first degree and a life sentence.

J. N Miller and E. N. & P. E. Jones, for appellant.

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

SIMPSON J.

The defendant in this case was convicted of the crime of murder in the first degree and sentenced to imprisonment in the penitentiary for life. The defendant moved to quash the venire, because the copy of the indictment served on him differed from the original. It is contended that the variance between the original indictment and the copy served on the defendant is that where the indictment has "whose" the copy has "whos," and where the indictment has "shooting" the copy has "shooling." In the first place, if there is anything in the slight variance which is not self-correcting, it would not furnish ground for quashing the venire, but only for setting aside the service. In the next place, neither the original indictment nor the copy which was served on the defendant is before this court and the court has said: "Whether a copy of the indictment served on the defendant corresponded to the original was matter for the determination of the judge presiding, and was determinable only by inspection and comparison of the two papers. * * * The two papers are not before us, and we cannot say there was error in the ruling." Brown v. State, 109 Ala. 70, 73, 74, 20 So. 103. See, also, Bodine v. State, 129 Ala. 106, 29 So. 926; Kirby v. State, 139 Ala. 87, 36 So. 721.

The fact that Ray and Stewart had served as jurors during the previous week did not render them incompetent to be included in the special venire. Code 1896, § 4988; Harrison v. State, 144 Ala. 20, 27, 40 So. 568.

After the state and the defendant had announced ready for trial, and after nine jurors had been selected, but none of them sworn, the state moved the court to re-examine into the qualifications of one of the nine, named Walton, "to see if he was a resident householder or freeholder," which motion was opposed by the defendant on the ground that said juror had been previously examined, pronounced qualified by the court, and accepted by both the state and the defendant. The court granted the motion, re-examined the juror, and pronounced him qualified. The state was then allowed, over the objection of the defendant to peremptorily challenge said juror.

This raises a point which has not been definitely settled by our decisions. In a capital case it was held that, after a juror had been accepted by the state, and put upon the prisoner and accepted by him, the right of the state to challenge for cause was lost, even though the solicitor and the court were ignorant of the existence of the cause when the juror was accepted. Stalls v. State, 28 Ala. 25, 27. On a trial for misdemeanor, after jury No. 1 was placed in the box, and other jurors from jury No. 2 had been called and had taken their seats, the solicitor was permitted to challenge one of the jurors for cause. This court, in sustaining such action of the court below, said that special jurors in a capital felony case could not be challenged after being accepted and sworn, and the rule could not be applied to misdemeanors, except as to talesmen; that as to the regular jurors, who had already been sworn, the right to challenge existed "until, by some positive act, the juror is selected," and that "the mere calling" and the challenge of other jurors, "without the acceptance or challenge of the particular juror, mere silence in regard to him," "is not an absolute waiver." The court goes on to state that it was not inclined to follow the Stalls Case, but, on the contrary, if the cause was discovered after the acceptance and before the juror was sworn, and the court was satisfied "that it has not been withheld from mere caprice, or from some improper motive, the challenge should not be disallowed," and goes on to remark that in that case the state did not lose the right until the juror was sworn. Smith v. State, 55 Ala. 1, 7.

In the meantime, in two cases, where the wording of the bills of exceptions did not clearly indicate that the defendant had "given any intelligent and intentional acceptance of his election as a juror," the court held that in the exercise of "the great and jealous tenderness which the law indulges towards the life and liberty of the citizen," and giving the rule its "most liberal interpretation," the defendant's right to challenge was not waived until the juror was sworn. Murray and Bell v. State, ...