Daughdrill v. State

• Decision Date: 27 January 1897
• Citation: 113 Ala. 7,21 So. 378
• Parties: DAUGHDRILL v. STATE.
• Court: Alabama Supreme Court

21 So. 378

113 Ala. 7

DAUGHDRILL v. STATE.

Supreme Court of Alabama

January 27, 1897

Appeal from circuit court, Etowah county; J. A. Bilbro, Judge.

Colie Daughdrill was convicted of murder in the first degree, and appeals. Affirmed.

The appellant was indicted, tried, and convicted of the murder of one Joseph Bates, and sentenced to be hanged. During the term time of the circuit court of Etowah, to wit, on May 11, 1896 the judge of the Ninth judicial circuit, who was presiding at said court, made the following order: "In the opinion of the presiding judge, a grand jury should be impaneled at this term of the circuit court of said county; and, no grand jury having been returned to serve at said term, it is ordered by the court that the sheriff forthwith summon eighteen persons qualified to serve as grand jurors, to be and appear at the present term of the court, on, to wit, the 13th day of May 1896. It is further ordered by the court that this order be entered on the minutes." In obedience to this order, a writ was issued by the circuit court, commanding the sheriff to forthwith summon 18 persons who were qualified to serve as grand jurors, to appear at the present term of the circuit court of said county, on May 13, 1896. In obedience to this writ, the sheriff summoned 18 named persons, 16 of whom were impaneled, sworn, charged, and duly organized as grand jurors, on May 13, 1896. This grand jury returned the indictment against the appellant in this case, charging him with the murder of Joseph Bates. The defendant moved to quash the indictment, upon the following grounds: "(1) Because the indictment or paper purporting to be an indictment was not preferred by a grand jury summoned, impaneled, sworn, and charged according to law. (2) Because the order for the summoning of grand jurors for the present term of this court as made and entered upon the minutes during the present term of this court, is not authorized by law. (3) Because the order for the summoning of grand jurors for the present term of this court, for the reason or upon the ground set forth in said order, is not authorized by law." This motion was overruled, and the defendant duly excepted. Subsequently, an order was made calling a special term of the circuit court of Etowah county for the trial of the cause against the defendant, it being set up in said order that the time fixed by law for the regular term of the circuit court of Etowah county was insufficient for the trial of said cause.

There was an application made for a change of venue, upon the ground that the defendant could not have a fair and impartial trial in Etowah county, where the said crime was committed. In support of this petition there were affidavits of 25 citizens of Etowah county, each of which stated, in substance, that they had heard the cause against the defendant generally talked about, and had heard people repeatedly say that the defendant should be hanged, and that in their opinion, the respective affidavits were based upon expressions they each had heard from different people that the defendant, Colie Daughdrill, could not get or have a fair and impartial trial in Etowah county. There was also attached to the application a newspaper article, somewhat inflammatory in its nature, describing the crime. As opposed to the granting of the application for a change of venue, the state introduced counter affidavits of 53 citizens of Etowah county, in which each of said affiants stated that they were each of the opinion that said Daughdrill could obtain a fair and impartial trial in Etowah county. Upon consideration of the motion for a change of venue, the court denied the application, and the defendant then and there duly excepted to this ruling.

Before going to trial, the defendant moved the court to quash the venire of special jurors drawn and returned to the special term of the court, and served on the defendant, upon the grounds: (1) Because the petit jury was drawn more than 10 days before the beginning of the special term. (2) Because the petit jury composing the venire was drawn by the probate judge, clerk, and sheriff of Etowah county, on the 3d day of June, 1896, more than 10 days before the 29th day of June 1896, the commencement of the term, and have been continuously published in a newspaper in Etowah county to the latter date. (3) Because there is no order of the court authorizing or ordering a petit jury to be drawn for the trial of this cause. (4) Because there is no order of the court authorizing the order drawing the 50 persons as petit jurors to try this cause at the special term of the court. (5) Because the copy of the venire served on the defendant showed on its face that 50 persons had not been summoned as special jurors to try this case. (6) Because the order of the court made on May 22, 1896, ordering a special term of the court for the trial of this cause, was void, because said order fails to show that, in the opinion of the judge, such special term was necessary; and said order was made in term time, during the sitting of the court, and was not entered on the minutes of the court. On the hearing of this motion it was admitted by the state that the jurors composing the copy of the venire served on defendant, and being those summoned for the special term of the court, were drawn by the probate judge, clerk, and sheriff of Etowah county more than 10 days before the beginning of the special term, and that they were published in the newspapers of said county on the 3d day of June, 1896, and from that date continuously to the time of the trial. It was also admitted by the state that at the regular term of the court, at which time the special term was called, no minute entry of the call of this special term was made, but on a day, viz. the 22d day of May, 1896, during the sitting of the regular term of the court, and before the adjournment of said regular term of the court, the judge of this court filed with the clerk of this court the following order, viz.: "It appearing that Colin Daughdrill is now confined in jail under an indictment for murder, which is stated on the state docket of said court, and numbered 1706, and the time fixed by law for the regular term of this court is insufficient for the trial of said cause, it is therefore ordered that a special term of the circuit court for Etowah county be held, beginning on Monday June 29, 1896, for the trial of said Colin Daughdrill under said indictment; and it is further ordered that fifty competent jurors be drawn and summoned as provided by law, and that thirty days' notice be given by advertisement of this order in the Gadsden Times-News, a newspaper published in said county." The court overruled the motion to quash the venire, and the defendant duly excepted. The defendant thereupon objected to being put upon trial at the special term of the court upon substantially the same grounds which were the basis of his motion to quash the venire. The court overruled the objection of the defendant to being put upon trial, and the defendant duly excepted.

Upon the court's entering upon the selection of the jury to try the case, J. A. Shores, one of the jurors summoned, when examined on his voir dire touching his qualification as a juror, stated that he had no fixed opinion as to his guilt or innocence, which would bias his verdict, but upon cross-examination by the defendant, which was allowed by the court, stated that he had said that, if reports of facts were true, defendant ought to be hung; that he did not know whether the reports were true or not; and that he had no bias or prejudice against the defendant that would prevent him giving the defendant a fair and impartial trial. Thereupon the defendant moved the court that said juror Shores be challenged for cause. The court overruled the motion, and the defendant duly excepted to this ruling, and then challenged him peremptorily. Similar examinations and similar statements were made by Jurors Hopper, Vinson, Guinn, and Gaines. Similar motions were made by the defendant for the challenge of each of said jurors for cause, and separate exceptions were reserved to the court's overruling each of said motions. The circumstances of the killing are sufficiently stated in the opinion.

Upon the introduction in evidence of the physicians who attended Bates after being shot, each of the physicians testified that his death resulted from the pistol wound which was inflicted by the defendant; that the ball passed through one of the lungs of the deceased; and, while the wound was not necessarily fatal, that the death of Bates was caused directly by said wound. The physicians, on cross-examination stated that for the purpose of alleviating the suffering, and in the treatment of the wound, the deceased was given morphine hypodermically, but stated that the death was in no way caused from the morphine. The state introduced Dr. Cross as a witness, who testified as follows: "I know Bates, the deceased. I saw him the night he was shot, in about 10 minutes after he was shot. Saw him in my drug store, in Gadsden, Ala. I had conversation with him at the time when they came in store with him. He said, 'Cross, I have been shot, and I am dying.' I said, 'All right; let's get down on the table, and get comfortable.' Bates was then four or five feet from me, and was being held up by three or four men. I went to make place for him to lie down on table, and he said, 'Never mind, come here,' and told me to hurry up. I went to him, and told the men to lay him down on the floor. They did so. He said two or three times he was dying, and then said he wanted me to send a mesage to his wife. He was very much excited and wrought up, and in a great deal of pain. He could not stand up by himself, and, when he spoke...