Darby v. State

• Decision Date: 15 June 1891
• Citation: 9 So. 429,92 Ala. 9
• Parties: DARBY v. STATE.
• Court: Alabama Supreme Court

9 So. 429

92 Ala. 9

DARBY v. STATE.

Supreme Court of Alabama

June 15, 1891

Appeal from circuit court, Butler county; JOHN P. HUBBARD, Judge.

The appellant in this case was jointly indicted with O. R. Odell George Howard, Adam Knight, and Sam Butler for the murder of one Henry Walker, by shooting him with a pistol. On defendant's request, a severance was granted, and he was tried and convicted of murder in the second degree, and sentenced to the penitentiary for 10 years. A motion was made by the defendant to quash the venire. The ground of the motion, and the ruling of the court thereon, are sufficiently set out in the opinion of this court. Upon the trial of the cause, as the bill of exceptions states "there was some evidence tending to show that there was a conspiracy or combination between Odell, George Howard Adam Knight, and Sam Butler to commit the crime charged against the defendant. It was in evidence that Adam Knight was the nightwalker of the railroad track, and that defendant Sam Butler and George Howard were section hands on the railroad, working under Odell, who was boss of the section. Daniel Harrison, a witness for the state, after testifying that he was a justice of the peace, and that Henry Walker the deceased, had sent for him, further testified that, when he entered the room where Walker was lying, he asked said Walker what he wanted with him, and that Walker's answer was as follows: That "he had sent for him, and wanted him to take down his testimony; that he was going to die." The witness testified that he did take down the testimony of Walker in writing, which was left by him in the grand jury room, when he was before the grand jury in this case. The examination of this witness was here interrupted, and Mr. Shell, clerk of the circuit court, was introduced, and was asked, "What became of the paper?" referring to the statement written down by Harrison. The witness answered that he did not know; and, in response to further questions, stated that he had searched for it, and did not find it. The defendant objected to each of the questions asked Shell as to this paper, which the court overruled. After this testimony Mr. Harrison was reintroduced as a witness for the state, and stated, in substance, the contents of the paper and what Walker had said to him on the occasion, to all of which defendant objected. This testimony, and all other testimony tending to connect the defendant with the commission of the crime, was altogether circumstantial. West Barnes testified that on the night the deceased was shot Adam Knight came to his house shortly before the shooting occurred; that soon after he came there Henry Walker called to him, (Barnes,) and asked him to come over to his house; that barnes answered that he would come as soon as the rain was over; that soon after they heard pistol shots, and that Walker called to him again to come over, that he was shot. This witness and his wife testified that Adam Knight, being asked why he was so wet, said that "he had been dodging the captain and walking the track; that he went to Walker's house, but he would not let him in;" and when the shots were heard, Adam Knight said: "There is a shooting out there somewhere." All of this testimony was severally and separately objected to. Alex Thomas, who was in jail under a conviction of grand larceny, testified, against the objection of defendant, to certain voluntary confessions made by defendant to him while they both were in jail, in which the defendant admitted that he committed the crime for which he was indicted. He also testified that he and defendant had very often quarreled while they were in jail, and that defendant "threatened him, and said he would have him lynched if he told anything about him." One Neal testified that while he was in jail he heard angry words between Alex. Thomas and the defendant, and had heard the defendant tell Thomas, in an angry voice, "If you tell anything you hear, I will have you lynched." The defendant severally objected to each portion of the testimony of both Thomas and Neal. Charlie Lane, after testifying that he was on the train and saw Odell "and a large colored man" talking together on the train, and that they both got off the train together at Searcy Station, the place where the killing occurred, was asked if he heard what Odell and the colored man were talking about, to which he answered, "I heard him ask Odell where his brother was, and what he was doing." The defendant objected to each portion of this testimony, and excepted to the court's overruling all of his objection.

Gamble & Powell, for appellant.

Wm. L. Martin, Atty. Gen., for the State.

MCCLELLAN J.

The record of the trial court shows that, more than one day before the day set for the trial, the court, the defendant being present, "caused the box containing the names of jurors to be brought into the court-room, and, after having the same well shaken, the presiding judge then and there publicly drew therefrom 50 of said names for this case, and a list thereof was immediately made out by the clerk of the court, and an order was issued to the sheriff to summon the same to appear upon said day of trial. *** And the court ordered the sheriff to serve the defendant with a copy of said list of jurors so drawn, and also with a list of the jurors drawn and summoned for the second week of his court," etc. On the day set for, and before entering upon, the trial, the defendant moved to quash the venire on the ground that one of the names drawn by the...