Beaird v. State

• Decision Date: 17 June 1926
• Docket Number: 7 Div. 631
• Citation: 109 So. 161,215 Ala. 27
• Parties: BEAIRD v. STATE.
• Court: Alabama Supreme Court

109 So. 161

215 Ala. 27

BEAIRD v. STATE.

7 Div. 631

Supreme Court of Alabama

June 17, 1926

Appeal from Circuit Court, Etowah County; W. J. Martin, Judge.

Homer Beaird was convicted of first degree murder, and he appeals. Reversed and remanded.

Street Bradford & Street, of Guntersville, for appellant.

Harwell G. Davis, Atty. Gen., and Thos. E. Knight, Jr., Asst. Atty Gen., for the State

MILLER J.

The defendant was indicted, tried, and convicted for the offense of murder in the first degree, killing Henry Ingram, by shooting him with a pistol. His punishment was fixed at life imprisonment in the penitentiary by the jury.

It appears from the evidence that Henry Ingram, the deceased was a policeman in city of Attalla at the time he was killed and had defendant under arrest. This municipality employed counsel to assist in the prosecution of the case. Two of the jurors who qualified and who were on the venire were taxpayers of this city, and one resided within and other without the corporate limits. The defendant challenged these two jurors, and objected to each being placed on the list of qualified jurors, because both were taxpayers of the city, and one resided in the city and the city had employed an attorney to prosecute this case. The court overruled the objection, placed the names of each on the qualified list of jurors, and the defendant used his challenges to strike them. In this court did not err. These two veniremen were taxpayers of the city, and this did not render them incompetent to serve as jurors. A citizen of a city is not disqualified by reason of interest as a juror when the city is a party of interest as a juror when the city is a party to the cause. Section 8664, Code of 1923. Here the city was not a party, simply employed counsel to assist in prosecuting the defendant for killing a policeman of the city, and because the juror owns property in the city or resides therein, and the taxes on part thereof paid by him may be used in paying the attorney to prosecute the defendant, would be too remote and contingent to affect his competency as a juror. Section 8664, Code of 1923 ; Doyal v. State, 70 Ga. 134, headnote 1.

Thomas B. Malone was called as a juror from the list of venire. He answered, and proof showed he lived at 519 Walnut street, and he was a member of the merchant firm of Malone & Davis. The venire served on the defendant contained this name, "Thoms D. Malone, merchant, 519 Walnut street, Malone & Davis." It is certain that Thomas B. Malone was the person intended as a juror, and he appeared and qualified. His name, over objection and exception of the defendant, was placed by the court on the qualified list of jurors, and the defendant used one of his strikes to challenge him. Under the statute a mistake in name of any juror drawn and summoned shall not be sufficient to quash the venire or continue the cause, and the statute now does not as formerly require the name of such person to be discarded and another summoned to supply the place. Section 8648, Code of 1923, and section 7267, Code of 1907. So we must hold the court did not err in placing him on the qualified list, as it was evident he was the person intended by the jury commissioners as a juror. It was simply a mistake in his name. Milligan v. State, 208 Ala. 223, 94 So. 169; section 8648, Code of 1923.

John Beaird and Ras Latham had been driving around in an automobile, buying and drinking liquor on Saturday night, December 2, 1925. About midnight they called at the house where the defendant resided, woke him, and he joined them and drove the car. They purchased more whisky, and all drank some and continued in their automobile, traveling the balance of the night. Sunday morning they reached Attalla, where they all go out of the car. Ras Latham and defendant went to one restaurant and got a cup of coffee. There was evidence that each was drunk. Ras Latham was more intoxicated than defendant. They walked together from the restaurant back to the car, and both got in it. The deceased, a policeman, came up and told Ras Latham to get out of the car and get in his car off, and the policeman's car followed; then the policeman ran his car in front of defendant to get out and get in his car. The defendant was on the rear seat of the car with Ras Latham, and the deceased was driving the car. The defendant had pistol the car. The defendant had a pistol in his pocket. He asked Ras where they were being taken, and he replied, to jail. Defendant pulled his pistol from his pocket and he shot it, intentionally or accidentally, the ball hitting deceased in the rear of or below the ear; he fell over, and soon bled to death. The car ran into something and stopped. The defendant and Latham jumped out and ran off. They were arrested that day some distance from Attalla. There was evidence tending to show that defendant fired and pistol, and there was evidence that it went off accidentally as he was getting it out of his pocket and throwing it out of the car to prevent it being found on his person. THere was evidence that he was drinking, and some evidence tending to show he was drunk at the time, and there was some whisky in the car. The foregoing is the tendency of some of the testimony in the case.

The evidence that deceased had on the uniform and badge of a policeman at the time he was killed was relevant. It tended to show he was a city official and had defendant under arrest. Husch v. State, 211 Ala. 274, headnote 2, 100 So. 321.

It was competent to prove that defendant and others in the car that night were buying and drinking whisky. It shed light on the mental condition of the defendant from the effects of the whisky at the time the deceased was killed. And it was proper for witnesses who saw, knew, and heard him talk about the time of the homicide to state whether he talked "rationally" and "with good sense," as it would tend to show his condition as to intoxication. White v. State, 103 Ala. 72, headnote 3, 16 So. 63; Fincher v. State, 211 Ala. 388, headnote 4, 100 So. 657; Cagle v. State, 211 Ala. 346, 100 So. 318.

But the testimony that his companions had to persuade him to leave home that night, and the details of his and their acts and words when buying and drinking the whisky, would have no tendency to justify, extenuate or condemn the acts of the defendant at the time of the homicide, and the court properly excluded it from the jury. The deceased was not present and knew nothing thereof, and was not connected at that time with the defendant. Whitehead v. State, 206 Ala. 288, headnote 4, 90 So. 351.

Six witnesses testified that they knew the general character of the defendant in the community in which he lived, and that it was good. And the defendant asked the first witness if he knew his general character for "peace and quiet." The state objected, and the court sustained the objection, and would not permit the defendant to prove by these witnesses that they knew his general reputation or character in the community for "peace and quiet," and that it was good. The good character of the defendant, with reference to the subject of the charge in the reference to the subject of the charge in the indictment, is a fact relevant and competent for the consideration of the jury in connection with the other testimony in the case. Armor v. State, 63 Ala. 173. This court on this subject in Kilgore v. State, 74 Ala. 1, headnote 3, wrote:

"In all criminal prosecutions, whether for felony, or for misdemeanor, the previous good

character of the accused, having reference and analogy to the subject of the prosecution, is competent and relevant as original testimony; it is fact which must be submitted to the jury, and ought to be considered by them in determining whether he is guilty of the offense with which he is charged."

The general character of a defendant for peace and quiet in the community in which he resides has reference and analogy to the subject of murder and manslaughter, the offenses charged in this indictment, and the court should have permitted this testimony to go to the jury. It is competent and relevant as original testimony for the defendant. For this error, the judgment must be reversed. 4 Michie Dig. p. 156, § 227, and authorities there cited; Carson v. State, 50 Ala. 134; Felix v. State, 18 Ala. 720.

There was evidence that after defendant was arrested by the chief of police, O'Bryant, that morning that the chief kicked him two or three times as he was getting in the automobile to go to the jail. That day the defendant was in jail, and he told L.H. Camp "that Latham did the shooting." While this was not a confession, it was matter in that nature. It was competent evidence, and the court did not err in admitting it, because this witness, Camp, had previously shown by his testimony that it was voluntarily made by the defendant. The chief of police was not there. Crenshaw v. State, 205 Ala. 256, headnote 4, 87 So. 328.

The defendant and Ras Latham, who was also under arrest, in the afternoon after their arrests, were carried to the Birmingham jail by Sheriff Leath, John Coleman, and L.H. Camp. While on the way to Birmingham the state proved the defendant made a confession. The defendant insists it was not shown to have been voluntarily made by him. L.H. Camp testified to the court:

"Before Mr. Beaird made any statement about the killing, neither I nor anybody in my presence or his presence made any threats against him to get him to make the statement or told him it would be better for him to make a statement, or offered him any reward to get him to make a statement. The subject was raised between Beaird and Latham. Mr. Latham said to him: 'Homer, why did you want to tell the officers that I shot Henry Ingram?' My recollection is, he

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