Ferguson v. State

• Decision Date: 28 June 1902
• Citation: Ferguson v. State, 134 Ala. 63, 32 So. 760 (Ala. 1902)
• Parties: FERGUSON v. STATE.
• Court: Alabama Supreme Court

32 So. 760

134 Ala. 63

FERGUSON v. STATE.

Supreme Court of Alabama

June 28, 1902

Appeal from circuit court, St. Clair county; John Pelham, Judge.

Burk Ferguson was convicted of manslaughter, and he appeals. Reversed.

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: "(1) The court charges the jury that, before they can find the defendant guilty, they must find from the evidence, and that beyond all reasonable doubt, that the life of Will Andrews was taken unlawfully in pursuance of a formed design between the defendant and John Ferguson; and, if the evidence fails to convince your minds to that degree of satisfaction, then you must acquit the defendant. (2) The jury must find from all the evidence, and that beyond all reasonable doubt, that there was an agreement or understanding to kill Will Andrews unlawfully, before they can find the defendant guilty. (3) The court charges the jury that they cannot convict the defendant unless all the evidence shows beyond all reasonable doubt that the defendant either conspired with John Ferguson to unlawfully take the life of Will Andrews, or that he was aiding or abetting John Ferguson at the time Will Andrews was killed, and they cannot consider the question of the killing unless they in such way connect the defendant with the crime and the degree of guilt as to John cannot be considered against defendant. (4) The court charges the jury that before the defendant can be convicted the state must establish from all the evidence, beyond all reasonable doubt: First, that there was an agreement between the defendant and John Ferguson to unlawfully take the life of Will Andrews; second that the life of Will Andrews was taken unlawfully in pursuance of such agreement; and, failing in either, you must acquit the defendant. (5) The court charges the jury that they must find from all the evidence, and that beyond all reasonable doubt, that the defendant conspired with John Ferguson to take the life of Will Andrews unlawfully, and they must further find that Will Andrews was killed by John Ferguson unlawfully in pursuance of such agreement or understanding; and, failing to so find, your verdict must be 'Not guilty.' "

James A. Embry and M. M. Herring, for appellant.

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

SHARPE J.

It is questioned whether this record contains the necessary affirmative showing that defendant was in court when his trial day was appointed. He was indicted as "Buck Ferguson, alias Buck Fergerson." His appearance bond bears the signature of "W. B. Ferguson." In the order setting the day for trial the case is styled as "The State v. W. B. Ferguson," and contains a recital to effect that "the defendant, W. B. Ferguson, alias Buck Ferguson," was then present in open court. Entire accuracy respecting the designation of defendant would have required strict conformation in this record entry to the indictment, instead of to the indictment in part and the bond in part; but the preservation therein of one of the names by which the defendant was prosecuted is sufficient to at least prima facie identify him as the person referred to as being present. The word "alias" is used in the indictment as the equivalent of "alias dictus," or "otherwise called," and indicates not that the person referred to bears both names laid under the alias, but that he is called by one or the other of those names. Evans v. State, 62 Ala. 6.

In State v. Hughes, 1 Ala. 655, cited for defendant, it was considered that, in a capital case, pleas should be entered so as to form an issue before the jury was sworn to try and to render a verdict upon the issue joined. That this was done in the present case the record discloses plainly. The law did not require an arraignment or the interposition of a plea before the special jurors were drawn.

Under our statute (Code, § 4308), which abolishes the common-law distinction between accessories before the fact, and punishes and makes guilty as principals "all persons concerned in the commission of a felony whether they directly commit the act constituting the offense or aid or abet in its commission, though not present," the guilt of an accused of a felony may be established by proof that he contributed to the criminal result by words or acts intended to and calculated to incite or encourage its accomplishment, whether he was present at its consummation or not. State v. Tally, 102 Ala. 25, 15 So. 722; Raiford v. State, 59 Ala. 106; Hughes v. Same, 75 Ala. 31; Brunson v. Same, 124 Ala. 37, 27 So. 410; Griffith v. Same, 90 Ala. 583, 8 So. 812. It is not essential to the incrimination of one so participating in a criminal act that it be done in respect of time, place, or mode, according to any prearranged or instigated plan. Griffith's Case, supra.

The shot which produced the homicide in question was fired by defendant's son, John Ferguson, while the defendant was from about 130 to 200 yards away; and the theory of the prosecution was that the firing was in execution of a conspiracy between him and the son, or that he was an aider or abettor in the crime. There was evidence tending to prove animosity as between the deceased, Andrews, and his father and brother, on the one part, and defendant and his son on the other part. A witness testified that, about a week before the killing, defendant said to him: "I am under bond as postmaster, and do not intend to be run out of the office. If we were to kill the Andrewses, it would not amount to anything more than the shooting of a dog; that the grand jury would pay no attention to it." This witness further testified that on the same occasion defendant asked if he had seen the deceased, and said: "We are looking for him down here,...