Caldwell v. State

Decision Date30 June 1919
Docket Number7 Div. 18
Citation203 Ala. 412,84 So. 272
CourtAlabama Supreme Court

On Rehearing, October 23, 1919

Appeal from Circuit Court, Calhoun County; Hugh D. Merrill, Judge.

Edgar C. Caldwell was convicted of murder in the first degree and sentenced to death, and he appeals. Affirmed, and application for rehearing overruled.

The facts sufficiently appear from the opinion of the court, as do most of the excepted-to portions and of the court's oral charge. Special requests refused to the defendant, Nos 5, 6, 10, 11, 12, 17, 19, and 20, are charges relieving the defendant of guilt of murder in the first or second degree in case he killed the deceased under adequate provocation causing anger or thirst of blood. In charge 12 the court charges the jury that, if they believe from the evidence that the passion of the defendant was suddenly aroused by a blow struck or threatened by the deceased, at the time of the killing, and that said killing was the direct result of said blow, this would as a matter of law reduce the case to manslaughter, and the jury could not return a verdict of murder in either the first or second degree.

(This cause was passed upon by the United States Supreme Court on habeas corpus.)

Charles D. Kline, of Anniston, and B.M. Allen, of Birmingham, for appellant.

J.Q Smith, Atty. Gen., Horace Wilkinson, Asst. Atty. Gen., and Knox, Acker, Dixon & Sterne, of Anniston, for the State.


The appellant, Caldwell, stands convicted of murder in the first degree. The death sentence was imposed. Cecil Linton, a street car conductor, then in service, was the victim. The tragedy occurred on December 15, 1918. The appellant used a pistol, firing but two shots, one of which killed Linton and the other seriously wounded Morrison, the motorman of the street car. An outline of the event will suffice for present purposes. The appellant had entered the car as a passenger an altercation between him and Conductor Linton ensued; the motorman Morrison, went to the assistance of the conductor, and forcibly ejected appellant from the car; from without the car, on the ground, the appellant, drawing a theretofore concealed pistol, shot Linton and Morrison, they being at the time on the rear platform of the car; whereupon the appellant fled from the scene and was, later, during the evening of that day, taken into custody.

On the next day, December 16, 1918--which was during the term of the circuit court beginning, theretofore, in July, 1918, and to terminate by operation of law a few days thereafter (Gen.Acts 1915, pp. 707, 708)--the court entered an order directing reconvention of the grand jury on December 19, 1918. This grand jury had been organized by the court on September 2, 1918, with 18 members. It had made, on September 7, 1918, a written report, wherein the grand jury asked "to be discharged." The indictment upon which the appellant was tried was returned by this body--15 appearing in obedience to the order of reconvention--on the afternoon of December 19, 1918. Fifteen persons are a sufficient number to constitute a legal grand jury, if, of course, the body is otherwise competent. With interims not important to be now defined, the circuit courts are assigned two consecutive terms, during each calendar year; and for each term at least one grand jury, in counties of the population of Calhoun, is required to be impaneled. Gen.Acts 1915, p. 812, § 13; Gen.Acts 1909, p. 312, § 18. The grand juries so impaneled are such "for that term of the court," unless dissolved by order of the court. A grand jury, being a part of the court, can only be dissolved by operation of law or order of the court served by it. 20 Cyc. p. 1333; Clem v. State, 33 Ind. 418; In re Gannon, 69 Cal. 541, 11 P. 240. A grand jury once regularly impaneled is, nothing to the contrary being shown, presumed to continue until dissolved by operation of law or order of the court. State v. Winebrenner, 67 Iowa, 230, 25 N.W. 146; 20 Cyc. pp. 1032, 1033.

Since there is no record evidence, by which alone may such court action be shown, that the grand jury returning the indictment against appellant had been dissolved by order of the court previous to its reassembly, there is no merit in the appellant's several contentions that the indictment was preferred by a grand jury not authorized by law. The request made in the September, 1918, report of the grand jury that it be discharged is no evidence that the "court" dissolved the grand jury. That request but expressed the desire of the grand jury, not the action of the court essential to the dissolution of the grand jury which was impaneled to serve during the term ending subsequent to the return of the indictment against the appellant, unless dissolved by efficient order of the court.

On January 6, 1919, an order was entered convening "a special jury session of the circuit court of Calhoun county." This order was made on the first day of the 1919 half-year term of the circuit court. Gen.Acts 1915, pp. 707, 708. Section 2 of the act just cited provides:

"That the causes on the dockets for trial shall be called peremptorily at the times fixed by law and at such other times as may be fixed by order of circuit judge; *** and the cases against prisoners shall be called as many more times as may be necessary to secure prompt trials." (Italics supplied.)

This authorization and direction entirely justified the action of the court in entering the order which, as appears from its terms, was designed to equip the court with juries to serve the purposes contemplated by law as expressed in the quotation from the second section of the act of 1915.

This order also recited that--

"All cases pending in said court and at issue be triable at said special jury session of said court."

It is insisted for appellant that, since his case was not at issue on January 6, 1919, the date the order was made, his trial was premature; he being arraigned and pleading not guilty on January 10, 1919. The words "at issue" in the order did not introduce any binding limitation upon the power of the court--consonant with the law-enjoined duty to afford "prompt trials" of prisoners--to proceed, during the term, with the trial of any case, civil or criminal, that was at issue then or was thereafter put at issue. The order does not provide for the trial of cases now (on January 6, 1919) "at issue."

The power and authority of the court to control the business of the court--to determine what cases should be tried that were legally triable during the term, of which this prosecution was one--was plenary under our statutes; and, even if the words "at issue" should be read as only stipulating for the trial of cases now (on January 6, 1919) "at issue," the court was empowered to disregard the effect of the stipulation and proceed to the trial of any cases on the docket that might have been triable during the term, if the stipulation had not been made in the order, a stipulation that the court might have properly omitted. There is, hence, no merit in the contention that the petit juries, later going to constitute in part the special venire to try this appellant, were drawn and ordered summoned without authority of law. The provision of the General Act of 1909, § 15, p. 311, with reference to the drawing of juries for the next term of the court at least 20 days before the beginning of that term, and providing a remedy for the failure of the judge to do so, is declared, by section 29 of the act (page 317), to be directory merely, not mandatory; and it is further provided that the time at which the jurors are drawn shall not affect the legality of the body of jurors thus brought into being. Parris v. State, 175 Ala. 1, 6, 57 So. 857.

With respect to the failure of the sheriff to indorse the date of his return upon the process which authorized him to summon the regular jurors for the week of the court during which the appellant's case was set for trial will not authorize the presumption that it was prematurely made, without summoning all the jurors so drawn and listed on the process delivered to him. The return of the sheriff affirms that all the persons named on the list were served except one whose name was given. It is to be presumed, in the absence of any showing to the contrary, that the duty of the sheriff to summon the persons named on the list was efficiently discharged, and that the failure to serve the person not served was not attributable to a breach of duty on the part of the sheriff. Furthermore, it is the express provision of the jury law of 1909 (General Acts, p. 320, § 32) that the failure of the sheriff "to summon any of the jurors drawn, or any juror summoned fail or refuse to attend the trial, or there is any mistake in the name of any juror drawn or summoned, none nor all of these grounds shall be sufficient to quash the venire or continue the cause. ***" The court was within the exercise of its legal power in excusing the juror Ayers for cause regarded as sufficient by the court. Thomas' Case, 124 Ala. 48, 27 So. 315; Plant's Case, 140 Ala. 52, 37 So. 159; Acts 1909, pp. 319, 320. The exception to the action of the court in deciding, over the objection of the appellant, that the juror Stovall was qualified to serve upon the panel, is not sustained by the record; it not appearing that the objection was grounded upon any fact that would have justified the court in determining to the contrary.

The homicide was committed on December 15, 1918. The indictment was returned by a competent grand jury on December 19, 1918. The appellant was arraigned on January 10, 1919; and his trial set for January 17, 1919. After the state had announced ready for trial, the defendant, appellant, moved for a continuance on the...

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  • Young v. State
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    ...Premeditation and deliberation may be formed while the killer is "pressing the trigger that fired the fatal shot." Caldwell v. State, 203 Ala. 412, 417, 84 So. 272 (1919); Daughdrill v. State, 113 Ala. 7, 32, 21 So. 378 (1897). There need be no "appreciable space of time between the formati......
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