Dunn v. State

• Citation: 143 Ala. 67,39 So. 147
• Parties: DUNN v. STATE.
• Decision Date: 09 February 1905
• Court: Supreme Court of Alabama

39 So. 147

143 Ala. 67

DUNN v. STATE.

Supreme Court of Alabama

February 9, 1905

Appeal from Circuit Court, Pickens County; S. H. Sprott, Judge.

Matt Dunn, alias Lawrence Hopkins, was convicted of murder, and appeals. Affirmed.

The defendant excepted to the giving by the court at the written request of the state charges numbered 1 and 2, which are in the following language: "(1) 'Deliberate' and 'premeditated,' as these words are used in the statute defining murder, means only this: that the slayer must intend, before the blow is delivered, though it be for only an instant of time before, that he will shoot at the time he does shoot, and that death will be the result of the shot; or, in other words, if the slayer had any time to think before the act, however short, such time may have been even a single moment, and did think, and he shot as the result of an intention to kill, produced by even this momentary operation of the mind, and death ensued, that would be a deliberate and premeditated killing within the meaning of the statute defining murder in the first degree. (2) The court charges the jury that if the defendant, in Pickens county, and before the finding of this indictment, purposely killed the deceased, Joe Ray, by shooting him with a gun, with a wickedness or depravity of heart towards said deceased, and the killing was determined on beforehand, and after reflection (for however short a time before the fatal shooting was done is immaterial), the defendant is guilty of murder." After the court, without objection, had duly impaneled the jury to try the case, and after the jury had been selected and accepted by the state and the defendant the defendant moved the court to quash the special venire served on him, because on the copy served on him the name of John R. Carver, Jr., appeared, and the defendant offered testimony tending to show that there was no such person as John R. Carver, Jr., in the county of Pickens.

Willett & Willett, for appellant.

Massey Wilson, Atty. Gen., for the State.

DENSON J.

The defendant was convicted in the court below of murder in the first degree, and was sentenced to imprisonment in the penitentiary for life. From the judgment of conviction he has appealed.

The first question presented by the record for consideration relates to the action of the court in overruling a motion to quash the indictment. The motion was based upon the ground that one Richardson, who had been summoned as a grand juror was not present when the other members of the grand jury were sworn, but that he came in the courtroom after the jury was sworn, and while the presiding judge was engaged in delivering his charge to the jury; that the court's attention was called to the fact that Richardson was present and thereupon the court had him duly sworn as a member of the grand jury, and he took his seat as one of the jury. The bill of exceptions shows affirmatively that the presiding judge then rehearsed that part of the charge which was delivered in the absence of said Richardson, and the jury was then charged as a whole, and placed in the charge of a bailiff, with instructions to retire and enter upon the discharge of their duties, and that Richardson participated in the finding of the indictment against the defendant. We fail to see any merit in the contention of the defendant upon this question even if we were without a statute regulating such questions. Section 5269 of the Code of 1896 points out the only objection which may be taken to an indictment, by plea in abatement or otherwise, with respect to the formation of the grand jury. The ground stated in the statute is that the grand jurors were not drawn in the presence of the persons designated by law. Furthermore, if error could be predicated of the court's action in overruling the motion, we think it would be error without injury to the defendant, and would be healed by section 4333 of the Code of 1896. The motion to quash the special venire was not made until after the jury to try the case had been selected and accepted by the state and the defendant. The motion came too late, and for this reason, if for no other, the court did not err in overruling it. Ryan's Case, 100 Ala. 105, 14 So. 766; Longmire's Case, 130 Ala. 66, 30 So. 413.

The defendant sought to prove previous threats made by the deceased, which were communicated to defendant before the fatal shooting. As was well said in the case of Rutledge v. State, 88 Ala. 85, 7 So. 335: "Before evidence of previous threats by, or difficulties with, or ill feeling on the part of the deceased is properly admissible in a homicide case, the evidence adduced must have some tendency to establish the constituents of the right to destroy life, that life may be preserved, which are that the accused was without fault in bringing on the fatal rencounter; that he was in imminent peril, real or reasonably apparent, of loss of life or limb; and that he could not, as the matter presented itself to him, retreat, or avoid the combat, with safety to himself. The theory of the rule is that a right to kill can never be the result of the violent, bloodthirsty disposition, revengeful feeling, or threats of the deceased; and hence, until there are facts offered which go in some measure to establish the necessity to strike as the law defines that necessity, such evidence is patently irrelevant." Rutledge's Case, 88 Ala. 85, 7 So. 335; Jones' Case, 116 Ala. 468, 23 So. 135. The evidence in the case on the part of the state clearly showed that the defendant sought the deceased and killed him from a spirit of retaliation and revenge, for the purpose of punishing the deceased for past injuries done him.

The...