Davis v. State

Decision Date16 January 1902
PartiesDAVIS v. STATE.
CourtAlabama Supreme Court

Appeal from circuit court, Lowndes county; J. C. Richardson, Judge.

Mose Davis was convicted of murder, and appeals. Reversed.

The appellant, Mose Davis, was indicted and tried for the murder of Hannah Brown, was convicted of murder in the first degree and sentenced to be hung. Upon the day the cause was called for trial the defendant made a motion to quash the indictment. Upon a former day of the term the defendant had been arraigned, and pleaded not guilty. This motion to quash the indictment was overruled, and to this ruling the defendant duly excepted. Thereupon the defendant moved the court to allow him to withdraw the plea of not guilty and file a plea in abatement. The court refused to allow the defendant to withdraw the plea of not guilty and to file a plea in abatement, and to this ruling the defendant duly excepted. The defendant thereupon moved the court to quash the venire from which the jury was selected which tried the cause. The grounds of this motion are sufficiently shown in the opinion. The court overruled the motion, and the defendant duly excepted. There was evidence introduced on the part of the state tending to show that the defendant had killed Hannah Brown by shooting her with a pistol; one of the witnesses for the state testifying that the defendant told him that he had killed Hannah Brown, and that he started to dig a hole to put her body in, but decided not to do so. The facts surrounding the killing were not proven, the evidence relating thereto being circumstantial. R. R. Broadnax, a witness for the state, testified that on the night Hannah Brown was killed he saw the defendant and Hannah Brown in his store together, and heard them fussing at the corner of his store in a loud voice. This witness further testified as follows: "My store is about 75 yards south of the house where Hannah Brown was living when she was killed. They were quarreling at the corner of my store, on the outside of the store, and were talking in a loud voice. I heard the quarreling about 8:30 or 9 o'clock that Saturday night. There was a good deal of noise in my store, and a good deal of noise on the outside at the time I heard them quarreling on the outside of my store." The bill of exceptions then continued as follows: "The defendant moved the court to exclude from the jury what this witness heard on the outside. The court overruled this motion. To this action of the court the defendant duly and legally excepted." During the examination of Richmond Powell he testified, among other things, that the defendant had told him that he killed said Hannah Brown, but that when he was first asked if he knew anything about the killing he said that he did not; that he was subsequently arrested, and placed in jail. On cross-examination he testified to one Haynes coming to the jail and asking him about the killing of Hannah Brown. Upon the examination of this witness in rebuttal by the state's solicitor, he was asked in detail as to the conversation which he had with said Haynes. To each of the questions so asked the witness in rebuttal as to the conversation with Haynes the defendant separately objected and separately excepted to the court's overruling each of such objections. There was evidence introduced on the part of the state as to a hole being dug not very far from the house of Hannah Brown. R. L. Goldsmith was introduced as a witness for the state, and testified that he noticed tracks in one end of said hole, and that he asked the defendant why he dug said hole, and, upon the defendant denying that he had dug the hole, the witness Goldsmith stated to him that the tracks in said hole were those of the defendant, and asked defendant the following question, "Have you any objection to my taking your shoes away with me?" The witness further testified that the defendant would not consent for him to take the shoes away. The defendant moved the court to exclude the statement of the witness that the defendant would not consent for him to take his shoes away. The court overruled the motion, and to this ruling the defendant duly excepted. The defendant requested the court to give to the jury the following written charges, and separately excepted to the court's refusal to give each of them as asked: (2) "If, after a careful and cautious examination of all the testimony in the case, there is a reasonable doubt of defendant's guilt in the mind of either of the jurors you should acquit the defendant." (3) "A reasonable doubt may exist though there is no probability of defendant's innocence from the testimony, and, if the jury has not abiding conviction to a moral certainty of his guilt, then they should find him not guilty."

D. K Middleton and W. P. McGaugh, for appellant.

Chas. G. Brown, Atty. Gen., for the State.

TYSON J.

After a plea to the merits, a motion to quash the indictment and a plea in abatement comes too late. Jackson v. State, 74 Ala. 26; Horton v. State, 47 Ala. 58. It is a matter of discretion, not revisable, with the trial court, whether the accused shall be permitted to withdraw the plea of not guilty and interpose a plea in abatement. State v. Williams, 3 Stew. 454; Hubbard v. State, 72 Ala. 164.

The motion to quash the venire facias juratores, as did the motion to quash the indictment and the plea in abatement proposed to be filed, proceeded solely upon the theory that the act of December 19, 1876 (Acts 1876-77, p. 190), entitled "An act to secure more effectually competent and well qualified jurors in the counties of Montgomery, Lowndes Autauga, Dallas, Perry and Bullock," is still in force and of effect. Manifestly, if it was repealed by the act of February 28, 1887, the motion is without merit. The act of February 28, 1887 (Acts 1886-87, p. 151), is entitled "An act to more effectually secure competent and well qualified jurors in the several counties of this state, with the exception that the provisions of this act shall not apply to the counties of Henry, Mobile, Dallas, Talladega, Clay, Marengo, Cherokee, Etowah, St. Clair, Coffee, Dale, Geneva, Marshall and Montgomery." It will be noted that Lowndes is not one of the counties excepted from the operation of this act. Being one of the several counties in this state, it is, by the very terms of the act, included within its provisions. Section 17 of this act reads as follows: "Be it further enacted, that section 4732 of the Code of Alabama, and all other laws and parts of laws, general and special, conflicting with the provisions of this act, be and the same are hereby repealed; but all laws now in force in relation to jurors, their drawing, selecting or qualification, not in conflict with this act, are hereby continued in full force and effect," etc. A mere cursory...

To continue reading

Request your trial
56 cases
  • Banks v. State
    • United States
    • Alabama Court of Appeals
    • 30 d4 Junho d4 1921
    ...of such comparison; the distinction being the accused is not required to "do any positive act in connection therewith." Davis v. State, 131 Ala. 10, 31 So. 569; Chastang State, supra; Cooper v. State, supra; Potter v. State, 92 Ala. 37, 9 So. 402; Pate v. State, 150 Ala. 10, 18, 43 So. 343;......
  • Hubbard v. State, 6 Div. 457
    • United States
    • Supreme Court of Alabama
    • 13 d4 Junho d4 1968
    ...tracks was held admissible where defendant was carried at his own request and voluntarily placed his feet in the tracks. In Davis v. State, 131 Ala. 10, 31 So. 569, the court held it reversible error to admit evidence that defendant declined to consent to taking away his shoes for the purpo......
  • Hill v. State, 8 Div. 947
    • United States
    • Alabama Court of Criminal Appeals
    • 18 d2 Abril d2 1978
    ...it was "unlawful to force the witness to give (or make) evidence against himself." 86 Ala. at 612, 6 So. at 111. In Davis v. State, 131 Ala. 10, 31 So. 569, 571 (1902), the same court said that "to conserve the spirit and purpose of the guaranty (of the state constitutional provision) the a......
  • Calhoun v. State
    • United States
    • Alabama Court of Criminal Appeals
    • 29 d5 Abril d5 2005
    ...cross-examination of a witness elicits part of a conversation, the State may in rebuttal show the entire conversation. Davis v. [State], 131 Ala. 10, 31 So. 569 [(1902)]; Flournoy v. State, 34 Ala. App. 23, 37 So.2d 218 Page 960 "It appears to us that the Court of Criminal Appeals, in apply......
  • Request a trial to view additional results
3 books & journal articles
  • Self-incrimination - what can an accused person be compelled to do?
    • United States
    • Journal of Criminal Law and Criminology Vol. 89 No. 4, June 1999
    • 22 d2 Junho d2 1999
    ...E. 884 (1925). But see dicta in Bridges v. State, 86 Miss. 377, 38 So. 679 (1905). Contra to majority rule stated above: Davis v. State, 131 Ala. 10, 31 So. 569 (14) See, in this connection, comment in 5 N. C. L. Rev. 333 (1927). (15) "In such cases the physical facts speak; not the defenda......
  • Is There a Georgia Supreme Court, Problem? Analyzing the Georgia Supreme Court's New Peculiar Approach Towards Breathalyzers and Implied Consent Law
    • United States
    • Mercer University School of Law Mercer Law Reviews No. 71-1, January 2020
    • Invalid date
    ...to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture." Id. at 764.21. See Davis v. State, 31 So. 569, 571 (Ala. 1902). The statement of witness Goldsmith that defendant declined to consent to his taking away the shoes which he (defendant) was wearing fo......
  • Does the Bill of Rights Need Revision?
    • United States
    • ANNALS of the American Academy of Political and Social Science, The No. 181-1, September 1935
    • 1 d0 Setembro d0 1935
    ...228, 15 N. W. 95(1883); Stokes v. State, 5 Baxt. (Tenn.) 619(1875); State v. Height, 117 Iowa 650, 91 N. W.935 (1902); Davis v. State, 131 Ala. 10, 31 So.569 (1901); Rettig v. State, 90 Tex. Cr. R. 142,233 S. W. 839 (1921); see State v. Graham, 116La. 779, 41 So. 90 (1906); State v. Jones, ......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT