Bluett v. State

• Decision Date: 15 May 1907
• Parties: BLUETT v. STATE.
• Court: Alabama Supreme Court

44 So. 84

151 Ala. 41

BLUETT v. STATE.

Supreme Court of Alabama

May 15, 1907

Appeal from Law and Equity Court, Walker County; T. L. Sowell Judge.

Rich Bluett, alias, etc., was convicted of manslaughter in the first degree, and he appeals. Reversed and remanded.

The defendant was indicted for unlawfully and with malice aforethought killing Scott Davenport, by shooting him with a gun or pistol. The defendant moved to quash the indictment (1) Because the grand jury which found it was not drawn as required by law, in that the jury commissioners picked and selected such parties or persons over the county as they wanted to act as grand jury, and called out and refused to take many names of those who were qualified jurors, and who if the jury had been properly drawn, would have appeared on the list of the grand jury. (2) The grand jury was illegally drawn in this: that, instead of drawing the jury as required by law, they selected from the box a list of men whom they knew were favorable to James A. Huggins, a candidate running for nomination of said county in a primary election, and who at the time they drew said jury was also a candidate for sheriff of said county; all the commissioners who drew the jury at the time being supporters and in sympathy with Huggins. While the said jury commissioners furnished the names of 19 or 20 persons whom they claimed to have drawn as grand jury for said county, the said names so drawn and furnished by them were all in sympathy with said Huggins being his supporters, except 1 or 2. The said Huggins in said primary election received about 1,200 votes, and the said Long, who was a candidate at said election for the same office, received about 1,300 votes, saying nothing about 1,000 Republicans who would not vote in the primary election but, as aforesaid, out of this great number of legally qualified persons to serve as jurymen, they selected as aforesaid a grand jury favorable to said Huggins, and that the selection of said grand jury shows on its face to have been fraudulently drawn. (3) Sets out the names of the parties who were drawn, and alleges that the commissioners allowed their political preferences to govern them in the drawing of said jury, and selected such names as suited them politically. (4) That said jury was fraudulently drawn, in that they were selected for political purposes, and because of their predilection to a certain candidate. (5) The said grand jury which found the indictment was illegally drawn, in that the said grand jury was not first drawn out of the jury box, but that said jury commissioners went into said jury box and selected such jury as they thought would be favorable to Huggins in his election. (6) Because they were selected from a list of some kind or picked out of the box for a political purpose. (7) Because of discrimination against the parties or persons in said county who did not and would not support said Huggins in his candidacy.

The exceptions to evidence are fully stated in the opinion.

The solicitor in his closing remarks said: "Gentlemen, the mouth of the dead man is closed. He cannot testify in this case. The law is now more liberal towards defendants in criminal cases than it was in times past. The law at one time did not allow the defendant to testify as a witness in his own behalf, and the law in civil cases now is that, when a person dies and his representatives are sued, a party interested in the result of the case cannot testify as to any transaction had with the deceased concerning matters involved in the controversy." The defendant objected to the remarks beginning with the statement, "The law in civil cases now is," to the conclusion as above set out.

The state requested the following written charges, which were given:

Charges 1 and 6 relate to murder in the first and second degree.

"(2) The court charges the jury the apparent necessity which will excuse the taking of human life under the doctrine of self-defense, in cases of homicide, involved two considerations: First, the defendant himself must have entertained an honest belief in the existence of such necessity; and, second, the circumstances surrounding him must have been such as to impress a reasonable man under the same state of facts with the belief of his imminent peril and of the existence of an urgent necessity to take the life of the assailant as the only apparent alternative of saving his own life, or else of the preventing the infliction on defendant of grievous bodily harm.

"(3) The court charges the jury that, before the jury can acquit the defendant on the ground of self-defense, three essential elements must concur: First, the defendant must have been without fault in bringing on the difficulty, and must not be disregardful of the consequences in this respect of any wrongful word or act; second, there must have existed at the time, either really or so apparently as to lead a reasonable mind to the belief that it actually existed, a present, imperious, impending necessity to shoot in order to save himself from great bodily harm; and, third, there must have been no other reasonable mode of escape by retreat or by avoiding the combat with safety.

(4) The court charges the jury that, to make the plea of self-defense available, the defendant must be free from fault in bringing on the difficulty. If the defendant was the aggressor, he cannot invoke the doctrine of self-defense, even though the deceased, at or before the time he was shot made a hostile motion as though he was going to shoot the defendant; and whether the necessity to take the life of the deceased was real or only apparent, if brought about by the design, contrivance, or fault of the defendant, he cannot be excused on the plea of self-defense.

"(5) The court charges the jury, when the defendant sets up self-defense in justification or excuse of a killing, the burden of proof is on him to show the jury by the evidence that there was a present impending danger, real or apparent, to life or limb, or of grievous bodily harm, from which there was no other probable means of escape, unless the evidence which proves the homicide proves also its excuse or justification."

"(9) The court charges the jury that a reasonable doubt must be an actual and substantial doubt, not a mere possibility or speculation. It is not a mere possible doubt, because everything relating to human affairs and depending upon moral evidence is open to some possible or imaginary doubt.

"(10) The court charges the jury that in whatever form the question of a reasonable doubt may be couched, and however it may be twisted by words, a reasonable doubt is no more than a reasonable doubt, and that, in considering the case, you are not to go beyond the evidence to hunt up doubt, nor must you entertain such doubts as are merely imaginary or conjectural. A doubt, to justify an acquittal, must be reasonable, and it must arise from a candid and impartial investigation of all the evidence in the case, and if, after considering all the evidence, you can say that you have a fixed conviction of the truth of the charge, you are satisfied beyond a reasonable doubt."

The defendant requested the following written charges, which were refused:

"(6) In this case, the proof shows that the killing was done in a sudden rencounter. The defendant sets up the defense that he did the killing in his own necessary self-defense. If you believe from the evidence introduced that at the time of the killing the defendant had the right as a reasonable man to believe, from the language and conduct of Scott Davenport, taken in connection with his previous threats, which are in evidence, that defendant at the time was in danger of death or great bodily harm, and that to have attempted to run out of the danger from the position in which he was at the time would have been dangerous to life and limb, and if the defendant actually believed he was in such danger, then he had the right to shoot Davenport in what he understood to be his necessary self-defense."

"(8) If the defendant was free from fault in bringing on the difficulty, he was under no duty to retreat, unless you believe he could have retreated without increasing his danger or with reasonable safety."

"(14) It is not necessary that there should be actual danger of death or great bodily harm in order to justify the taking of human life; but if the jury is satisfied from all the evidence that the circumstances attending the firing of the fatal shot were such as to impress the defendant at the time of the firing that it was necessary in order to prevent death or great bodily harm to his person, then the jury must acquit the defendant, unless they further believe that the defendant was free from fault in bringing on the difficulty."

(16) This charge is identical with 6, with the following additional: "The defendant should have been free from fault in bringing on the difficulty; but, under the facts as above stated, the burden should be on the state to show that defendant was at fault.

"(17) I charge you, gentlemen of the jury, that in this case, under the evidence, the burden is on the state to show that the defendant was not free from fault in bringing on the difficulty."

"(21) The court charges you, gentlemen of the jury, that it is not necessary that there should be actual danger of death or great bodily harm in order to justify the taking of human life; but if the jury are satisfied, from all the evidence in this case, that the circumstances attending the firing of the fatal shot were such as to impress the defendant with reasonable belief that at the time of the firing that it was necessary in order to prevent death or great bodily harm to his person, then they must acquit the defendant."

"(23) If...