Burton v. State

• Decision Date: 28 June 1897
• Citation: 115 Ala. 1,22 So. 585
• Parties: BURTON v. STATE.
• Court: Alabama Supreme Court

22 So. 585

115 Ala. 1

BURTON v. STATE.

Supreme Court of Alabama

June 28, 1897

Appeal from circuit court, Calhoun county; George E. Brewer, Judge.

Joe Burton was convicted of manslaughter, and appeals. Reversed.

The killing occurred in Cleburne county, and the indictment was preferred by the grand jury of said county; but upon application of the defendant there was a change of venue, and the defendant was tried in the circuit court of Calhoun county. The facts pertaining to the killing are substantially the same as disclosed on the former appeal, and reported in 107 Ala. 108, 18 So. 284, and reference is here made to the report of the case there found. Upon the examination, as a witness, of B. B. Bridges, one of the counsel for the prosecution, he testified that shortly after the homicide, on January 24, 1895, he made a map of the town of Edwardsville near which the killing occurred, and of the country surrounding it, including the lands and places thereabout. The witness produced said map or diagram, and further testified that while it was not made by actual measurement or with a square and compass, or by any special scale, the map was substantially correct, and showed correctly the relative positions of the places and objects marked upon it and thereupon the witness explained in detail every line mark, and designation upon the map, and testified as to where he found the body of the deceased, and was proceeding to testify as to the location of different objects designated thereon, when the defendant objected to the witness using the map in his testimony, on the ground that it was illegal, inadmissible, was not shown to be correct, and was calculated to mislead the jury as to distance and topography of the country. The court overruled each of these objections, and the defendant separately excepted. Upon the examination of Murra Evans, a brother of the deceased, and after he had testified that he saw Jethro, the deceased, going out of the yard the afternoon of the killing, the solicitor asked the witness the following question: "What, if anything, at this time, did deceased say about where he was going, and what he was going to do?" The defendant objected to this question because the same was illegal and called for inadmissible and irrelevant testimony. The court overruled the objection, and the defendant duly excepted. The witness answered, "The said deceased, Jethro Evans, stated that he was going out to shoot some." The defendant objected, and moved to exclude this answer, upon the same grounds as he objected to the question, and duly excepted to the court's overruling his objection. The witness further testified, "These were the last words I ever heard Jethro say." W. M. Evans, the father of the deceased, was introduced as a witness, and testified: "That he knew Mrs. D. A. Sox, and that she resided at this present time in Tallapoosa, Ga. He was at her house, in Tallapoosa, Ga., in January last, and she was sick in bed there then. And that he was present and heard her testify on the former trial of this case, and that he thought he could give substantially all her evidence on said trial, both on direct and cross examination, in the order in which she gave it. That what witness understood by 'substantially all' was that he could give all the leading parts of her testimony on said trial. After further explanation as to the meaning of 'substantially,' witness said, 'Think I can give substantially all her testimony, immaterial as well as material, both on direct and cross examination, in the order in which it was delivered on the former trial. The solicitor then asked the witness, 'What did Mrs. D. A. Sox swear on said former trial?' The defendant objected to said question because it was illegal, irrelevant, and inadmissible, and because the witness had not shown himself competent to testify as to what Mrs. D. A. Sox had sworn to on the former trial. The court overruled the said objections of defendant, and allowed said witness to testify in answer to said question, and the defendant excepted." The witness then proceeded to testify as to what Mrs. D. A. Sox had testified on the former trial of this case. The defendant introduced in evidence the interrogatories propounded to, and the deposition of, Mrs. Sallie E. Sox, a witness in his behalf. Among the interrogatories propounded to this witness was the question asking her if she did not testify at the coroner's inquest, and also before the grand jury, that on the evening of the killing she saw the defendant, and he looked very pale,-very much paler than usual,-and that he had something in his hip pocket which caused his coat to bulge out. In answer to this cross interrogatory the witness answered that she did testify both before the coroner and before the grand jury, but that she did not testify to such facts. In rebuttal the state introduced two witnesses who were, respectively, asked if Mrs. Sallie A. Sox did not testify at the coroner's inquest and before the grand jury that she saw the defendant on the evening of the killing, and that he looked very pale,-much paler than usual,-and that, as he walked off, she noticed that he had something in his hip pocket which caused his coat to bulge out. To each of these questions the defendant objected upon the ground that it called for illegal, irrelevant, and inadmissible evidence, and no sufficient predicate had been laid to contradict the witness Mrs. Sallie A. Sox. Each of these objections was overruled, and the defendant duly excepted. Each of the witnesses answered that she had so testified. One of these witnesses was a member of the grand jury, and one of the grounds of objection interposed by the defendant to the questions asked this witness was "that he could not disclose what transpired before the grand jury." This objection was also overruled, and the defendant duly excepted. Among the charges requested by defendant which the court refused to give was the following: "(58) The court charges the jury that if they believe from the evidence that the witness Ella Tollerson swore on the former trial of this case that she told Mr. and Mrs. Holloday on the next morning after the homicide, at their residence, in Edwardsville, that she saw the defendant, Joe Burton, late on the evening of the homicide, coming from the direction of Mr. Stephens', and that on this trial she swore that she did not so tell Mr. and Mrs. Holloday at the time and place above mentioned, and if they further believe from the evidence that said Ella Tollerson willfully swore falsely as to the above matter on either the former trial or on this trial, then the jury may disregard and give no weight to any portion of the testimony she testified to on this trial."

R. B. Kelly, James Aiken, D. D. McLeod, and W. J. Samford, for appellant.

Wm. C. Fitts, Atty. Gen., and Merrill & Bridges, for the State.

BRICKELL C.J.

1. This indictment is in the form prescribed by the Code, and avers all the elements and constituents of murder in the first degree, which may be punished capitally,-by death,-or by imprisonment in the penitentiary for life. The defendant having pleaded not guilty, the primary duty of the court-a duty to be performed in the personal presence of the defendant-was the setting a day for the trial of the cause and the day having been set, at least one entire day prior thereto, the drawing of special jurors, not less than 25 nor more than 50, as the court deemed necessary, to be summoned by the sheriff, under the order of the court, and added to the panel of petit jurors organized for the week; the two constituting the "venire," as it is termed in the statute, from which the jury for the trial were to be selected. Cr. Code 1886, p. 134, note, § 10. A judgment of conviction on an indictment for an offense which may be punished capitally cannot be supported, when drawn in question on error, unless it is shown affirmatively by the record that there was by the court performance of these duties. Spicer v. State, 69 Ala. 159; Sylvester v. State, 71 Ala. 17; Posey v. State, 73 Ala. 490; Jordan v. State, 81 Ala. 20, 1 So. 577; Washington v. State, 81 Ala. 35, 1 So. 18; Watkins v. State, 89 Ala. 82, 8 So. 134. The present record does not affirmatively show that a day was set for the trial of the cause, nor that there was the drawing of the special jurors for the trial, as the statute requires. It appears, rather, from the record, that there was not observance of the statute in either respect. If it were permissible to look to the record of this case when here at a former term (Burton v. State, 107 Ala. 108, 18 So. 284), it would appear there had been a trial on which there was a conviction of murder in the second degree, operating an acquittal of murder in the first degree, if the acquittal had been pleaded specially by the defendant, withdrawing the case from the operation of the statutes in regulation of trials for offenses subject to capital punishment. Jordan v. State, supra. But we cannot supplement the deficiency of records by referring to the records of the former terms of this court, though it may be a record in the particular case. And, if the record was looked to, the error of the court would not be cured. The acquittal of murder in the first degree, under the practice established in De Arman v. State, 77 Ala. 10, emphasized by the rule of practice promulgated by this court December 13, 1887 (82 Ala. viii.), requires the acquittal to be pleaded specially, to avoid a conviction of that offense. The record does not disclose the filing of the plea, and, as the case is presented, there was not the observance of the mandatory requirements of the statute. The failure to observe them is an error necessitating a reversal...