Cawley v. State
| Decision Date | 05 June 1902 |
| Citation | 133 Ala. 128,32 So. 227 |
| Parties | CAWLEY v. STATE. |
| Court | Alabama Supreme Court |
Appeal from circuit court, Lee county; A. A. Evans, Judge.
John P Cawley was convicted of manslaughter in the first degree, and he appeals. Reversed.
The appellant, John P. Cawley, was indicted and tried for the murder of Brady Jones by shooting him with a gun, and was convicted of manslaughter in the first degree, and sentenced to the penitentiary for 10 years. The defendant was arraigned on October 21, 1901. The judgment entry of said date recites as follows: "The defendant, being in open court attended by his counsel, and being duly arraigned according to law, pleads 'Not guilty,' and also 'Not guilty by reason of insanity.' " The minute entry then recites that October 28, 1901, was set as the day for the trial of the defendant. It then contains the order of the court for the drawing of 50 names to serve on the special venire. The minute entry then proceeds to recite that the state, through its solicitor, moved the court to quash the special venire upon the grounds that certain names were drawn from the jury box by the court at the spring term, 1901, of said circuit court, as special jurors for the trial of another murder case, and that after so drawing said special jurors the court restored said names to the jury box, and the same names had been drawn from said box as special jurors in the present case, and that, proof of the facts alleged in the motion being made, the court sustained the motion, and the special venire was quashed. The minute entry then shows the following proceedings: The court ordered the box containing the names of the jurors to be brought into the court room and drew therefrom 50 names to serve as special jurors for the trial of the defendant. The state moved to quash the special venire so drawn upon the ground that certain persons drawn upon said venire had been drawn and summoned to serve as regular petit jurors for the week in which the trial of the defendant had been set, and that the names of such persons appear both upon the special venire and upon the list of those persons served and summoned as jurors for the week of the court. The facts alleged in this motion being shown to the court, the court sustained the motion, and the special venire was quashed. Thereupon the court proceeded to draw from the jury box another list of 50 names to serve on the special venire, and ordered the same served upon the defendant. When the cause was called for trial on October 28th, the day set for the trial of such case, the defendant moved the court to quash the special venire drawn and summoned in said case, and assigned eight grounds for said motion. The first and second grounds were the ruling of the court in quashing the special venire drawn on October 21st. The third, fourth, and fifth grounds were that the list of jurors served on the defendant did not contain the name of W D. Graves, nor of the jurors drawn and summoned to serve on the regular petit jury for the week the trial of the defendant was to be had, but that said list of jurors served upon the defendant did contain the name of one W. D. Garves who was not drawn and summoned upon either the special venire or the regular petit jury for said week. The sixth and seventh grounds of the motion were not supported by the evidence, and it is unnecessary to set them out. The eighth ground of the motion was that the list of jurors served on the defendant fails to show what persons had been drawn and summoned to serve as petit jurors for the week the defendant was to be tried. The allegations contained in the first and second grounds of the motion were admitted to be true. In support of the third, fourth, and fifth grounds of the motion, it was shown that a mistake had been made in transcribing the name of W. D. Graves, who was drawn as a special juror upon the list served upon the defendant, and his name was written "W. D. Garves." Thereupon the court directed the name of such person to be discarded, and the name of another person forthwith summoned to serve on the same case, and the person so summoned was disposed of in the same manner as if he had been drawn in the first instance. In support of the eighth ground it was shown that the list of jurors served on the defendant did not show who were the jurors drawn and summoned for the week of the court in which the defendant was to be tried, or who were the special jurors drawn for the trial of the case, but that the list of jurors served on the defendant contained the names of the jurors drawn and summoned for the third week of the court, together with the names of the special jurors drawn for the trial of the case. The defendant's motion to quash was overruled, and to this motion the defendant duly excepted.
The evidence for the state tended to show that as the deceased Brady Jones, was walking along what is called a "plantation road," he met the defendant, Cawley; that, as Jones saw said Cawley, he stooped and started to run; that thereupon Cawley shot and killed him. It was shown that the plantation road ran between the house of the defendant and one Sylla Griggs; that the distance from Cawley's house to where the shooting occurred was about 200 yards. It was further shown that the killing occurred about 6 o'clock in the morning; that the deceased had been to the house of Sylla Griggs, to see her about picking some cotton for him, and was returning from her house when he was shot. One H. G. Adams, a witness for the state, testified to the location of the road, and how it was situated in regard to Cawley's house and that of Sylla Griggs' house; and he showed to the jury, by a drawing on paper, the relative location and distances of the several places about which he had testified. The state then asked the witness Adams the following question: "A person leaving Jones' house, and going into the plantation road, and thence along said road to where the body of Jones was found,--is there any obstruction to prevent such person from being seen from said house?" The defendant objected to this question because it called for illegal, incompetent, and immaterial evidence, and called for the conclusions of the witness. The court overruled the objection, and the defendant duly excepted. The witness answered that there was not. The defendant duly excepted to the court's overruling his motion to exclude this answer of the witness. The evidence for the defendant tended to show that, as he and his son were walking along the plantation road, they met Jones, the deceased; that, as Jones came towards the defendant, the latter told him to stop, but that Jones kept advancing, and put his hand in his pocket, and moved as if to draw it out; and that thereupon the defendant fired upon him. The sister of the defendant was introduced as a witness, and testified that she was a widow, and that Brady Jones had had illicit relations with her daughter, who was unmarried; that the defendant, who was her brother, was her protector, and she had asked him to keep Jones away from her daughter; and that after this request the defendant seemed very much depressed. There was also evidence introduced for the defendant tending to show that, after the request was made by the sister of the defendant, he seemed to be unable to talk about anything else except the relations existing between his niece and said Jones, and that he seemed to be brooding over it all the time. There was also evidence...
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