Fariss v. State
| Decision Date | 16 July 1888 |
| Citation | 85 Ala. 1,4 So. 679 |
| Parties | FARISS v. STATE. |
| Court | Alabama Supreme Court |
Appeal from city court of Montgomery; T. M. ARRINGTON, Judge.
The defendant, Irvine Fariss, was indicted for murder, and from a conviction of manslaughter he brings this appeal. The charge to which reference is made in the opinion is as follows "(3) If the proof of self-defense in this case depends entirely upon the testimony of the defendant himself, and there is no other witness who testifies to facts tending to prove self-defense, the jury are authorized to consider this fact in weighing the testimony, and may also consider the fact that the defendant testified under the influence of great interest in the result of the case, and the further fact, if it be a fact, that there is a conflict between the testimony of the defendant and of Mr. Johnson, and also between that of the defendant and the other witnesses who swear that they saw the difficulty; and if, from these circumstances, they find that the defendant has not told the truth, they may reject his testimony altogether; and, if they do so reject said testimony, there is no element of self-defense proven in this case." The defendant excepted to the giving of this charge.
John G. Winter, for appellant.
T N. McClellan, Atty. Gen., for the State.
The defendant was indicted for murder, and convicted of manslaughter in the first degree. On March 10, 1888, the defendant was arraigned, pleaded not guilty, and Thursday, April 12, 1888, was set for the trial. The court ordered that "fifty jurors, including the regular jurors summoned for the week in which this case is set for trial, be summoned for the trial of this cause." No question is raised on the summoning and impaneling of the jury except what is after shown. The case was taken up for trial during the week for which it was set. Pending the drawing of jurors for the purpose of selecting and impaneling the jury, five several names were drawn, each of whom was of "the regular jurors summoned for the week." They not appearing, the court announced, in reference to each of them, that, on their several applications, they had been excused by him from attendance on the court as jurymen for reasons which the court deemed sufficient. This had been done without the knowledge of defendant, and the discharge had been ordered on Monday, the first judicial day of the week. This question was properly reserved for our consideration. In Parsons v. State, 22 Ala. 50, this court held that the discharge of a juror under circumstances shown above, if objected to on the trial, was a reversible error. In Sylvester's Case, 71 Ala. 17, speaking of this subject, we said: "Without deciding it to be error to excuse a juror from service before a capital felony is regularly called for trial, when he is shown to be exempt by statute, we are of opinion that the safer practice is not to excuse any juror, in advance of the trial, until he claims the privilege of such exemption on his name being regularly drawn." Phillips v. State, 68 Ala. 469; Shelton v. State, 73 Ala. 5. This question, however, has been twice decided the other way, and we will treat it as settled. Floyd v. State, 55 Ala. 61; Jackson v. State, 77 Ala. 18. We do this not reluctantly, because the rule asserted in Parsons' Case is exceedingly inconvenient in practice, and it is believed that it accomplishes no good result. It must be presumed that judges, in excusing jurors, act on correct principles, and discharge them only for good and sufficient reasons. Parsons v. State, 22 Ala. 50, so far as it conflicts with this opinion, is overruled.
All the witnesses who saw the homicide testified that it took place in the night-time, in front of Abbie Times' dwelling. Deceased was standing at her door, was acting boisterously made threats against his own wife, who was within, and had been beating on the door with a stick, and trying to get in. Defendant, coming up, accosted him with the inquiry: "What's the matter here?" Deceased replied to this, and advanced towards defendant. Defendant gave back a few steps, deceased still advancing, when the fatal shot was fired. We say all the eye-witnesses agree in this much. None of the witnesses were as near to the parties as they were to themselves; and while they all, with the exception of the defendant, testified that they saw no knife, he testified that the deceased was advancing on him with a knife. He testified, further, that he retreated as far as he could, and into a fence corner, before he fired the pistol. Johnson, superintendent, though not in sight, testified that he three times heard deceased say: "Turn me loose, or I cut you;" and...
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