Burton v. State

• Court: Alabama Supreme Court
• Writing for the Court: COLEMAN, J.
• Citation: Burton v. State, 107 Ala. 108, 18 So. 284 (Ala. 1895)
• Decision Date: 26 July 1895
• Parties: BURTON v. STATE.

18 So. 284

107 Ala. 108

BURTON v. STATE.

Supreme Court of Alabama

July 26, 1895

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

Joe Burton was convicted of murder in the second degree, and appeals. Reversed.

The appellant, Joe Burton, was indicted by the grand jury of Cleburne county, at the spring term, 1895, of the circuit court of said county, for the murder of Jethro Evans. At the spring term, 1895, of the circuit court of Cleburne county the defendant moved for a change of venue, upon certain grounds alleged in his motion. This motion was granted, and the cause was removed to the circuit court of Calhoun county and upon the trial of the cause by said court, at the spring term, 1895, the defendant was convicted of murder in the second degree, and sentenced to imprisonment in the penitentiary for 10 years. Before entering upon the trial of said cause, the defendant moved the court to quash the venire of jurors for the trial of this case, upon the following grounds, to wit: (1) A true copy of the list of jurors summoned for his trial was not served on him, or counsel appearing for him, one entire day before the day set for his trial. (2) A true copy of the lists of jurors composing the regular jury summoned for the week in which his case is set for trial, and of the jurors summoned for his trial, was not served on defendant, or on counsel appearing for him, one entire day before the day set for his trial. (3) The entire list of special jurors drawn in addition to the regular jurors for the week for which his trial was set, amounting to 50 persons, was served on the defendant, except said regular jurors summoned for the week, and yet the defendant avers and shows unto the court that 10 of said jurors drawn in said venire were not in fact summoned,-the return of the sheriff on the original showing they were not found,-and the fact of said 10 jurors not being found or summoned was not shown on the alleged copy served on the defendant. (4) The copy of the venire showing the regular jurors drawn for the week of the court for which this defendant's trial is set omits and fails to show the names of the persons, to wit, W. Halcomb Isaac Murphy, and N. G. Hudson, who were on the venire for said week of said court, but, not having appeared, were not included in the juries for said week of said court, as the same were organized. On the hearing of said motion, it was shown to the court that the defendant had, one entire day before the day set for his trial, been served with a copy of the indictment against him, together with a list of the 50 jurors drawn specially for his trial, and of the persons who were drawn and summoned as jurors for the week set for said trial, and that 10 of said 50 special jurors had not been summoned by the sheriff, which fact the copy served on the defendant did not show; also, that the copy served on the defendant did not contain the names of the 3 jurors mentioned in the motion, as above set out, as having been on the venire for said week of said court, and who were drawn as jurors for said week, but were not summoned by the sheriff as such. The motion to quash the venire was overruled by the court, and the defendant duly excepted.

The evidence introduced in the trial of the cause, as is shown by the bill of exceptions, showed that the homicide was committed on the evening of the 24th of January, 1895, within a short distance of the town of Edwardsville, in Cleburne county; that the defendant was arrested on the same evening about 9 o'clock, and placed in jail; that the deceased was the son of the sheriff of said county, about 20 years old, and that the defendant was 15 years old on April 1 1895. The circumstances and surroundings of the defendant at the time he was making the alleged confessions are sufficiently stated in the opinion. These confessions were different as testified to by the several witnesses. Some of the witnesses testified that the defendant said to them that he and the deceased were in the woods, shooting at a mark, he with a rifle, and the defendant with a pistol; that as he stepped to the tree on which was a mark, to see how near he came to hitting the mark, and while his back was turned towards the deceased, he heard a shot, and, turning around, saw the deceased fall. Another witness testified that, upon his asking the defendant who killed Jethro Evans, he said that he would not tell who killed him, but would write it, and that thereupon he wrote upon a piece of paper, which was handed him by the witness, "A. Vaughan." The detective who was introduced as a witness testified, among other things, that the defendant confessed to him that he killed the deceased, Jethro Evans. The defendant separately excepted to the testimony of the several witnesses testifying as to the confessions made by the defendant, upon the grounds: (1) That they were not shown to be voluntary; (2) that they were extorted by duress; (3) that they were made while the defendant was imprisoned by the sheriff, who was prosecutor; and (4) they were obtained by questions asked, and were not voluntarily made. The several objections of the defendant to the testimony of each of the witnesses, in reference to the confessions alleged to have been made, were separately overruled, and the confessions were allowed to go to the jury; and to each of these separate rulings the defendant separately excepted. It was shown that the defendant and the deceased were schoolmates, and had attended school on the day of the homicide. The state introduced as witnesses several of the schoolmates of the defendant and the deceased, and these witnesses testified that, during the day, several notes had been exchanged between the defendant and the deceased, during school hours, and that the defendant enjoined upon the deceased to say nothing about them. After the body of the deceased was found, there was taken from one of his pockets three notes, and these said notes were shown to the schoolmates of the defendant, while being examined as witnesses, and upon their testifying that they were familiar with the defendant's handwriting, and that, in their opinion, these notes were written by the defendant, the state offered them in evidence. The defendant objected to the introduction of said notes in evidence, and duly excepted to the court's overruling his objection. The other rulings of the court upon the evidence are sufficiently stated in the opinion, and it is deemed unnecessary to further set out in detail the manner in which the several exceptions were reserved thereto by the defendant. The defendant introduced evidence tending to show that at the time of the killing, as shown by the testimony of the state's witnesses, the defendant was not at the place of the killing, but was at home, assisting in work about the place.

Upon the introduction of all the evidence, the court, at the request of the solicitor, gave to the jury, among others, the following written charges: (11) "If the jury believe from the evidence, beyond a reasonable doubt, that the defendant induced Jethro Evans to go with him to a secluded place, and that defendant there shot him with a gun or pistol, and killed him, and that he did the act with formed design, and that it occurred in Cleburne county, Alabama, and before the finding of this indictment, you should find the defendant guilty of murder in the first degree." (14) "When the corpus delicti is proved, independent of the prisoner's confessions, an extrajudicial confession establishing the criminal agency of the defendant, if believed by the jury, will authorize a conviction." (28) "When confessions made by the defendant are admitted in evidence by the court, if the jury believe the confessions are true, they cannot disregard them, although they may believe they were not voluntarily made." The defendant separately excepted to the court's giving each of the charges requested by the solicitor, and also separately excepted to the court's refusal to give each of the written charges requested by him, among which were the following: (13) "If the state has failed to show any motive for defendant to have murdered deceased, and if the defendant has shown that he was at home when deceased was shot, then the jury must find the defendant not guilty." (15) "The court charges the jury that if the state has failed to show any motive for the defendant to have murdered Jethro Evans, and if the state has failed to so convince each and every juror by the evidence that defendant was present at the scene of the homicide, and not at his home, and to do this to that degree of certainty that they would, each of them, venture to act upon that conviction in matters of the highest concern and importance to his own interest, then the jury must find the defendant not guilty." (46) "Before the jury can convict the defendant, they must be satisfied to a moral certainty, not only that the proof is consistent with the defendant's guilt, but that it is wholly inconsistent with every other rational conclusion; and, unless the jury are so convinced by the evidence of the defendant's guilt that they would each venture to act upon that decision in matters of the highest concern and importance to his own interest, then they must find the defendant not guilty." (67) "The court charges the jury that they are the final judges as to whether the confession, as testified to by Lawrence P. Evans, the state's witness, was voluntary or not." (68) "The court charges the jury that in passing on the credibility of the statements made by the defendant, as testified to by witnesses for the state, they may take into consideration the circumstances under which they were made; and if the jury believe from the evidence before them that said statements were not...