Byers v. State

• Decision Date: 20 December 1894
• Parties: BYERS v. STATE.
• Court: Alabama Supreme Court

16 So. 716

105 Ala. 31

BYERS v. STATE.

Supreme Court of Alabama

December 20, 1894

Appeal from criminal court, Jefferson county; Samuel E. Greene Judge.

Isham Eugene Byers was convicted of murder, and appeals. Affirmed.

The appellant was indicted for the murder of Eugene Walker, and was sentenced to be hanged. The evidence on behalf of the state tended to show that Eugene Walker, the deceased, was killed by being shot with a pistol near Birmingham, in Jefferson county, on Saturday night, January 6, 1894. The deceased had been a soldier in the United States army for about five years, and had been stationed in Nebraska; his father lived in Walker county, Ala. He arrived in Birmingham Friday afternoon, on his way home to his father's, and stopped at the Metropolitan Hotel in Birmingham. The evidence further tended to show that about midnight Nathan Byers, a brother of defendant, saw defendant in a restaurant, and told him that his cousin, Eugene Walker, was in town and wanted to see him (the defendant). The defendant soon afterwards went to the Metropolitan Hotel, and had deceased wakened up, and they left the hotel together; during the balance of the night they were together in a certain restaurant and a bawdy house with other persons, male and female. The deceased exhibited a roll of what appeared to be greenbacks, and new. The defendant had a pack of playing cards, and proposed to gamble with deceased and others, and some playing was done. The evidence showed that on Saturday, the day of the murder, the deceased had a package of new crisp bills folded in a peculiar and unusual manner, in small squares lying one upon the other. Deceased and defendant continued together all during the day Saturday, and frequented different saloons and bawdy houses. The evidence further tended to show that at different time during the day, the defendant told several different parties that deceased had money, and that if they would go into a game of cards with him and help him work a trick, they could win deceased's money. Defendant and deceased were together all during the day, until shortly before 6 o'clock on Saturday. About 6 p. m. the defendant tried to borrow a pistol from three different persons, but failed to borrow one. Between 6 and 6:30 the defendant went into the pawn shop of Mose Blank, and bought a Colt's pistol, 41 caliber, and loaded it in there. He was alone with Blank when he tried to borrow the pistol and when he bought it. The evidence further tended to show that the deceased and defendant were seen together by a number of witnesses on the Behren's Park car, which leaves town at 6 o'clock but which left a few minutes late that evening, and that they rode to the end of the line, got off there and walked off from the car line in the direction of the place where the deceased's body was found, and this was the last time deceased was seen alive by any of the witnesses. Shortly before 8 o'clock the defendant was seen in Birmingham on Twentieth street and avenue B, coming towards, First avenue. It had been raining and was probably raining then, and defendant stopped at Gaines' shoe store, and brought a pair of new shoes, leaving his old ones to be repaired, they being wet and muddy. The defendant turned away from the witness, who sold him the shoes, and took out some bills which were seen by a witness on opposite side of house. He paid for the shoes with a $10 bill, which was introduced in evidence and was creased the same as the bill received by Sheehan from deceased. That defendant admitted getting this bill from deceased in payment of a debt which deceased owed defendant. That he returned to Blank's pawn shop, and complained that the pistol was out of order, and that he exchanged it for another, and then left them both there. That during the night he visited various barrooms, and was drinking heavily; that he exhibited money, gold and bills; that he inquired at several places for his cousin Eugene Walker, and appeared anxious as to his whereabouts, and expressed the fear that something had happened to him. The body of deceased was found near Behren's Park, about 1 3/4 miles from Twentieth street and first avenue, on Sunday morning, (the morning after the murder), lying on his back, one hand in his pocket, a bullet hole behind his ear, and about 15 cents in his pocket. He appeared to have been dead, 12 or 15 hours. The evidence further tended to show that deceased and defendant both had on blue yachting caps during Saturday. That defendant was arrested Sunday afternoon charged with the murder of Eugene Walker; that on Monday morning, the pistol he bought and took off with him had evidences of having been recently fired; that there was a piece of paper in the barrel which defendant admitted on the stand came out of his pocket. The defendant, testifying in his own behalf, denied that he had killed deceased, and said that he had not seen him since about 6 o'clock Saturday afternoon, when he parted with him on First avenue and Twentieth street, until he saw his dead body on Sunday afternoon. He further testified that from about 6:30 until nearly 8 o'clock he was in town, at places named, in company with two parties, Watkins and Smithson; that it was raining, and his pistol got wet, and he tried to dry it with some paper taken from his pocket. Defendant admitted being with the deceased all during Saturday, but denied that he made any attempt to win his money; that each had a deck of cards, and showed each other some tricks they knew, and some offers to bet were made during the day among others; but that he did not bet or offer to bet with deceased, but once, and that was a short while after they met when he won three dollars from deceased on a trick, and that he then offered to return the money. On cross-examination defendant said he did not know whether he asked Oscar White to go in with him and work a trick on deceased and win his money. The witnesses Watkins and Smithson, testifying for the defendant, corroborated him in the main details as to his whereabouts between 6:30 and 9 o'clock.

The rulings of the court upon the motions for a change of venue and to quash the venire are sufficiently shown in the opinion, as are also the rulings of the court upon the evidence, which are reviewed on this appeal. Upon the introduction of all the evidence the defendant requested the court to give the following written charges, and separately excepted to the court's refusal to give each of them as asked: (1) "It is your duty to reconcile all the testimony if you can, so as to make all the witnesses speak the truth, and if you cannot reconcile all the testimony, then you may reject what you believe to be untrue. But you cannot reject the testimony of any witness capriciously, and if, on considering all the testimony, you still remain in doubt as to the truth or falsity of any material fact, you must give the defendant the benefit of the doubt, and acquit him." (2) "Gentlemen, if the evidence leaves you in any doubt as to whether the defendant was present at the killing of the deceased, you must find the defendant not guilty."

Greene & Montgomery, for appellant.

W. C. Fitts, Atty. Gen., and J. J. Attman, for the State.

HARALSON J.

1. In an application for a change of venue in a criminal case, the statute (Code, § 4485) requires the defendant, to state in his application to the court, "specifically, the reason why he can not have a fair and impartial trial in the county in which the indictment is found, *** and [it] must be made as early as practicable before the trial, or may be made after conviction, on a new trial being granted, and the refusal of such application may, after final judgment, be reviewed and revised on appeal." The word "trial," as employed in the statute, means, as has been elsewhere held, "the investigation of a matter in issue between opposing parties before a tribunal competent to decide upon it"; and that "in a criminal case the term does not include the arraignment, or any other merely preparatory proceeding which may be taken prior to the time of administering the requisite oath to the jury." Hunnel v. State, ...