Collins v. State

• Decision Date: 21 May 1903
• Citation: 137 Ala. 50,34 So. 403
• Parties: COLLINS v. STATE.
• Court: Alabama Supreme Court

34 So. 403

137 Ala. 50

COLLINS v. STATE.

Supreme Court of Alabama

May 21, 1903

Appeal from Circuit Court, Hale County; John Moore, Judge.

Ben Collins was convicted of murder, and appeals. Reversed.

When the case was called for trial, the defendant moved the court to quash the venire upon the following grounds: "(1) Because one O. G. Breitling was one of the reguular jurors drawn and summoned for this week, and his name was not upon the venire served upon the defendant or his counsel. (2) Because the venire served upon the defendant contained the name of one J. B. Garbrew, as one of the regular jurors drawn and summoned for the week, and there is no such person in the county as J. B. Garbrew. (3) Because the venire served upon the defendant or his counsel contained the name of one J. W Stephen, Beat 6, as a special juror, and there is not now nor was there at the time the jury box was prepared, from which said name was drawn, such a person in said Beat 6, or in Hale county, as J. W. Stephen." On the hearing of this motion it was shown by the evidence that O. G. Breitling was drawn as a juror for the second week of the term of the court (which was the week set for the trial of this case) by the jury commissioners, and that his name, together with the names of the other jurors, so drawn for said week, was on the list furnished the sheriff of said county, but that said O G. Breitling was not summoned as a juror. As to the said J B. Garbrew and J. W. Stephen, it was shown that there was not in Hale county at the time the jurors were drawn, or at the time of the trial, or any other time, any person by the name of J. B. Garbrew or J. W. Stephen, but that there was in Hale county a man of the name of J. B. Garber, and a man of the name of J. W. Stephenson. The court overruled the motion to quash the venire, and to this ruling the defendant duly excepted. Thereupon the court directed that the names of J B. Garbrew and J. W. Stephen be discarded from the venire, and directed the sheriff to summon from the qualified citizens of said county two persons to take the places of those so discarded, and the names of those so summoned were furnished to the counsel for the state and to the counsel for the defendant, and such names were then put in a hat, from which the jury to try the case was drawn.

The evidence for the state showed that J. W. Winningham was killed by being shot with a gun which was in the hands of the defendant, Ben Collins; that the killing occurred at Moundville between 8 and 9 o'clock; that, at the time of the killing, Flan Flanagan and Will Sample and Carrie Collins were present.

During the examination of one Thompson as a witness for the state, he testified that he was at Moundville on the night John Winningham was shot; that the shooting occurred on the railroad track, not far away from the store of one Griffin; that about five minutes before the shooting he was at Griffin's store, and Ben Collins and Carrie Collins were in there; and that, as they walked out, Ben Collins was in front, and Carrie Collins was about 15 feet behind him, and Carrie Collins made a statement as she was going out of the store. The solicitor then asked the witness, "What did Carrie Collins say as she came out?" The defendant objected to this question on the ground that it called for illegal and irrelevant evidence, and because no declarations of Carrie Collins could bind the defendant. The court overruled the objections, and the defendant duly excepted. Answering the question, the witness said that Carrie Collins applied very opprobrious epithets to the white people, and said that some of them "would go to hell to-night."

Luther M. Owen, a...