Bell v. State

• Decision Date: 02 June 1904
• Parties: BELL v. STATE.
• Court: Alabama Supreme Court

37 So. 281

140 Ala. 57

BELL v. STATE.

Supreme Court of Alabama

June 2, 1904

Appeal from Circuit Court, Madison County; Paul Speake, Judge.

Bud Bell was convicted of murder in the second degree, and appeals. Affirmed.

After the 12 jurors constituting the panel to try the case had been selected and had taken their places in the jury box, the judge presiding, before having the oath administered to such jurors, allowed them 10 minutes in which to send messages to their families and make any other arrangements they might desire before entering upon the trial, but instructed them that "they must not leave the courtroom, or separate themselves from one another." Notwithstanding this admonition from the presiding judge, and without the consent of the court or the defendant, Will Woodey and G. W. Woodey left the courtroom, and separated from the other members of said panel of jurors, and were absent from the courtroom for a period of about 10 minutes. After their return to the courtroom, and before the trial was entered upon, defendant through his attorneys, in open court, moved the court to quash the panel of the jury drawn and selected to try the case, upon the ground that the said Will Woodey and G. W Woodey had separated from the other members of the jury which were drawn and selected. The court overruled the motion, and to this ruling the defendant duly excepted. Thereupon the defendant moved the court to discharge from the regular panel selected to try the case the said Will Woodey and G. W Woodey upon the ground that they had separated from the other members of the jury. The court overruled this motion, and the defendant duly excepted.

The defendant filed the following pleas: "(1) Not guilty (2) not guilty by reason of insanity; (3) not guilty by reason of excessive drunkenness."

The evidence for the state tended to show that the defendant had a dispute with one Solway while they were in a barroom; that the defendant drew his pistol, and fired upon Solway, who ran out of the barroom; that thereupon he turned and fired upon several people who were standing near a stove in the barroom and, upon their running away, he turned and fired upon one Frank Stewart, who had come into the barroom, and was leaning against the counter; that he struck Solway in the heart, and he ran out of the barroom, and fell dead on the sidewalk; that at the time the defendant shot at Stewart the latter had said nothing to him, and had just come into the barroom; that Stewart died from the effects of the wounds inflicted by the defendant.

There was some evidence introduced tending to show that the defendant, at the time the fatal shot was fired, was drunk. Dave Penny, a witness for the state, testified that he was present when the said Stewart was shot by the defendant; that the defendant looked like he had been drinking, but did not appear to be drunk. Upon the cross-examination of the witness Penny the defendant's counsel asked him to describe more fully the manner of defendant's action at the time of the shooting. The witness replied that "the defendant acted like he thought five or six men were after him." The state moved to exclude this answer of the witness. The court granted the motion, excluded the answer, and to this ruling the defendant duly excepted.

There was some evidence introduced on the part of the defendant tending to show that he was insane when under the influence of whisky, and that at the time of the killing of Stewart he was very drunk. The defendant introduced as a witness in his behalf H. S. Bell, who testified that he was the father of the defendant, and he testified that there was insanity in the defendant's family on his father's side and his mother's side, and that several of his relatives had died in the insane asylum. Upon the cross-examination of the said witness H. S. Bell the state asked him the following question: "Has the defendant ever been crazy?" The defendant objected to this question upon the ground that it called for illegal and incompetent evidence. The court overruled the objection, and the defendant duly excepted. The witness replied that the defendant had all of his life been "subject to spells," and that this was especially true when he was drunk. The state then asked the witness the following question: "Is the defendant crazy now?" The defendant objected to this question upon the ground that it called for illegal and incompetent evidence, and upon the further ground that the witness was not shown to be an expert on insanity. The court overruled the objection, and the defendant excepted. The witness answered, "I do not know that he is what you would call crazy now." The defendant moved to exclude this answer, and duly excepted to the court overruling his motion.

There was evidence introduced on the part of the defendant tending to show that he was a man of good character, and had a good reputation in the community where he lived.

The bill of exceptions contains the following recital as to the request of the defendant to have certain charges given by the court: "At the conclusion of the evidence, and after the oral general charge of the court to the jury upon the law and the evidence, the defendant requested the court to give in his behalf to the jury the following special charges in writing, to the refusal of the court to give which, severally and separately, the defendant in open court duly excepted." The charges referred to were the following "(2) If the jury believe from the evidence that there was no malice upon the part of the accused against the defendant at the time he fired the fatal shot, you cannot convict him of murder in the first degree." "(7) If the jury believe from the evidence beyond a reasonable doubt that at the time the defendant fired on the deceased he was laboring under temporary mental incapacity to design to kill deceased he cannot be convicted of murder at most; and if you further have a reasonable doubt as to whether or not he was so drunk that he could form the specific intent to kill the deceased he can only be convicted of manslaughter in the second degree." "(9) If the jury have a reasonable doubt, arising from all the evidence, as to whether or not the defendant was so drunk or intoxicated that he could not form a specific intent to kill deceased, or to do him great bodily harm, then you should acquit him." "(11) If you are reasonably doubtful as to the proof in this case of any material allegation of the indictment, you must acquit the defendant." "(15) If the jury believe the evidence beyond a reasonable doubt, you must find the defendant not guilty." "(18) If the jury are not satisfied beyond a reasonable doubt, to a moral certainty, and to the exclusion of every other reasonable hypothesis but that of the defendant's guilt, they should find him not guilty; and it is not necessary, to raise a reasonable doubt, that the jury should find from all the evidence a probability of the defendant's innocence, but such a doubt may arise even when there is no probability of his innocence in the testimony; and if the jury have not an abiding conviction to a moral certainty of his guilt it is the duty of the jury to find the defendant not guilty. The jury must find the defendant not guilty if the conduct of the defendant upon a reasonable hypothesis is consistent with his innocence." "(26) If the defendant has proved a good character as a man of peace, the law says that such good character may be sufficient to create or generate a reasonable doubt of his guilt, although no such doubt would have existed except for such good character." "(21) If there is...