Davis v. State

• Decision Date: 16 January 1902
• Parties: DAVIS v. STATE.
• Court: Alabama Supreme Court

31 So. 569

131 Ala. 10

DAVIS v. STATE.

Supreme Court of Alabama

January 16, 1902

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...