Brown v. State

• Decision Date: 29 April 1896
• Citation: 20 So. 103,109 Ala. 70
• Parties: BROWN v. STATE.
• Court: Alabama Supreme Court

20 So. 103

109 Ala. 70

BROWN v. STATE.

Supreme Court of Alabama

April 29, 1896

Appeal from circuit court, Lauderdale county; Thomas R. Rouehac Judge.

Bill Brown was convicted of the murder of James Foster, and appeals. Reversed.

The appellant in this case was indicted and tried for the murder of one James Foster, was convicted of murder in the first degree, and sentenced to be hanged. On the trial of the cause the defendant moved the court to quash the venire in the cause, on the grounds: First, that the copy of the indictment furnished the defendant by the order of the court was not a true copy of the original indictment on file in the cause second, because there was a mistake in the name of one of the regular jurors for the week, this mistake being shown to be merely in the initial letters of the said juror's given name; third, because one of the regular jurors summoned for the week failed to attend. The fourth, fifth, and sixth grounds of the motion to quash were all ascertained by the trial court to be untrue. This motion to quash was overruled and to this ruling the defendant duly excepted. The evidence for the state tended to show that upon complaint made by one W. J. Walker before G. H. Harraway, justice of the peace of Lauderdale county, charging that the defendant "did enter the said Walker's premises, and maliciously carry away chickens of the value of $1.20," the justice of the peace, Harraway, issued a warrant for his arrest, reciting that he had been charged with the offense of petit larceny and deputized one John Moody to execute the warrant; that upon ascertaining the whereabouts of the defendant, John Moody summoned James Foster, the deceased, to assist him in making the arrest, and that Walker, Moody, and Foster proceeded to the house where it was ascertained the defendant was; that admission to the house was first denied the parties seeking to make the arrest, but upon being finally told that they had come for Bill Brown, the defendant, and had a warrant for him, the door was opened; that the room was dark, and that as James Foster struck a match and entered the door, the defendant fired upon him, inflicting a wound from which he died in 10 minutes. The facts attendant upon making the arrest are sufficiently stated in the opinion, as are the other facts in the case Upon the introduction of one of the witnesses for the state, who was present at the arrest of the defendant, he testified that when they discovered the defendant he was running, and that, after being fired at several times by the parties seeking to make the arrest, he was shot, and dropped his gun; that thereupon the witness picked up the gun, and ran to the defendant, and asked him "if that was the gun he killed Jim Foster with." The witness was then asked by the solicitor, "What reply did the defendant make to this question?" The defendant objected to this question, on the ground that there had been no predicate laid for the introduction of a confession. Upon the court requiring a proper predicate to be laid for any statements by the defendant tending to incriminate him, the witness then replied that after the defendant was shot and captured, and the witness was taking him in his buggy from the place of capture, he asked him "if that was the gun he killed Foster with, and that he made no promises or threats to the defendant." The solicitor then stated "that the testimony was sought only for the purpose of identifying the gun." The court then overruled the defendant's objection, and to this ruling the defendant duly excepted. The witness answered, "Bill said it was the gun he killed Foster with." The defendant reserved separate exceptions to several portions of the court's oral charge to the jury. Each of these portions of the charge is copied in the opinion. The defendant requested the court to give to the jury the following written charges, and separately excepted to the court's refusal to give each of them as asked: (1) "I charge you, gentlemen of the jury, that the affidavit and warrant introduced in evidence in this cause shows on its face that the justice had no authority to issue the warrant; and I further charge you that said warrant has no protection to the person deputized to execute it, nor to the persons coming to his aid in his effort to execute it." (2) "I charge you, gentlemen of the jury, that the affidavit and warrant introduced in evidence in this case shows on its face that the justice had no authority to issue the warrant; and I further charge you that said warrant has no authority for the arrest of the defendant now on trial, and the defendant had a right to offer such resistance as was necessary to protect himself from arrest thereunder, provided such resistance was not disproportionate to the assault upon the defendant." (3) "I charge you, gentlemen of the jury, that under the undisputed evidence in this case James Foster, the person alleged to have been killed, was a trespasser upon the premises of Jim Kelly; and if the jury believe from the evidence that the defendant was rightfully in the dwelling house on said premises, then I charge you that the defendant was in his castle, and had a right to defend the same against unlawful and forcible intrusion." (4) "I charge you, gentlemen of the jury, that the deceased, James Foster, was engaged in an effort to arrest the defendant without lawful authority at the time he was killed by the defendant, and this fact may be considered by the jury, together with all the other evidence, in determining whether or not the defendant is guilty as charged."

John T. Ashcraft, for appellant.

W. C. Fitts, Atty. Gen., for the State.

BRICKELL C.J.

Whether the 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. After inspection and comparison, the judge ruled that there was correspondence. The two papers are not before us, and we cannot say there was error in the ruling. This is equally true of the ruling that the copy of the venire served on the defendant corresponded to the original. All reasonable presumptions consistent with the record are necessarily indulged to support the rulings of the primary court. Mistakes, errors in the names of the persons composing the venire of jurors served on the defendant, do not necessitate the quashing of the venire. Jones v. State, 104 Ala. 30, 16 So. 135, and authorities cited.

The objections to the introduction of evidence are not of importance, and it is only necessary to say the evidence was relevant and properly admitted.

The presiding judge, in his general charge, said to the jury: "The court deems it unnecessary to charge the jury in this case upon the law of homicide of any other kind or degree than murder in the first degree, for if those elements which are necessary by the law to establish that offense and establish the guilt of the defendant thereof, as the court will presently charge you, are established to your satisfaction beyond a reasonable doubt by the evidence, then in this case there is no occasion for the jury to consider any degree of murder except murder in the first degree." It is not shown, and in the presence of this declaration it cannot be presumed, that the jury were instructed in reference to either of the inferior degrees of criminal homicide. Certainly it is not surprising that the counsel for the prisoner did not treat this emphatic declaration of the court with so much of disrespect as would have been implied in a request for instructions touching the inferior degrees. The refusal of such instructions was preordained. Murder at common law was defined, or rather described, by Lord Coke in these words: "When a person of sound memory and discretion unlawfully killeth any reasonable creature in being, and under the king's peace, with malice aforethought." The presence of malice, express or implied, was the distinguishing characteristic of murder; as the absence of malice, manifested by the presence of provocation, was the distinguishing characteristic of voluntary manslaughter. The statutes, as has been often explained, from motives and considerations of humanity, without changing the common-law definition of murder, without adding to or taking away any of its constituents, for the purposes of punishment only, have divided it into two degrees,-murder in the first and murder in the second degree. With much of care and particularity the essential constituents of murder in the first degree are described, succeeded by the declaration that "every other homicide, committed under such circumstances as would have constituted murder at common law, is murder in the second degree." Cr. Code, § 3725." Having, for the purposes of punishment, divided murder into two degrees, a mandatory requirement of the statute is that: "When the jury find the defendant guilty under an indictment for murder, they must ascertain by their verdict, whether it is murder in the first or second degree; but if the defendant on arraignment confesses his guilt, the court must proceed to determine the degree of the crime, by the verdict of a jury, upon an examination of the testimony, and pass sentence accordingly." Cr.

Code, § 3728. The latter clause of the statute varies from the statutes of some of the other states, which on a plea of guilty, or a confession of guilt by the defendant at the bar commit to the court the finding of the degree of the crime; and it is significant of the legislative intent to withhold in any and all events that authority from the judge, committing the duty to the jury, in exclusion of all such authority. The original of the statutes is found in the Penal Code of 1841. Clay...