Finch v. State

Decision Date24 January 1887
Citation81 Ala. 41,1 So. 565
PartiesFINCH v. STATE.
CourtAlabama Supreme Court

Appeal from circuit court, Fayette county.

Indictment for manslaughter.

At the spring term, 1885, of the circuit court of Fayette county Villa Finch, the appellant, and Rube South, were jointly indicted for manslaughter in the first degree, alleged to have been committed by them in the killing of James Lindsay. On the trial, which took place at said term, the jury found the appellant, Finch, guilty as charged in the indictment but, as to said Rube South, being unable to agree, a mistrial was entered, and the jury discharged. On this point the bill of exception states: "The jury, after having once before returned into court, came in, and the judge asked if they had agreed upon a verdict. The foreman answered, 'No sir;' and, after pausing a moment, 'No further than we had before.' The counsel for Finch then objected to the reception of the verdict; whereupon the court said 'I will propound the question once more: Have you agreed upon a verdict?' To which the foreman of the jury answered: 'We have agreed as to one of the defendants.' The solicitor then moved the court to receive the verdict agreed upon, as to the defendant so agreed upon, to which Finch objected; but the court overruled the objection, and directed the clerk to receive the verdict which was as follows: 'We, the jury, find the defendant Finch guilty as charged in the indictment, and sentence him to imprisonment in the penitentiary for nine years;' to all which the defendant Finch excepted. The court then asked the jury if they had agreed as to the other defendant, and the foreman answered: 'No; and there is no prospect of our agreement.' The court then, upon motion of the solicitor and the consent of South, the other defendant, discharged the jury; to which action of the court Finch objected, the court overruled the objection, and Finch excepted. This was done at 12 M., on Saturday, twelve hours before the expiration of the term."

In impaneling the jury to try the case, the name of W. E. Julian was drawn. Julian had been a member of the grand jury which had indicted Villa Finch for the same offense at a term of the court previous to the one at which the present indictment had been found. Counsel for the defense offered to waive this objection, and take Julian as a juror. The solicitor replied that he did not think it a matter as to which the defense could make a binding waiver, and that he would object, and excuse said Julian. The court thereupon ordered Julian to stand aside, challenged by the state for cause. The said Julian had not been sworn. To this action of the court the defendant excepted.

Ruf. Sanford, a witness for the state, testified, in answer to a question by the solicitor, that he loaned Finch a knife, while at the depot, on the day of the difficulty, some time before the killing, and that he had not seen the knife since. The solicitor then asked the witness to describe the knife. The defendant objected to this question, the court overruled the objection, and he excepted.

Glenn Thornton, a witness for the state, testified that on the evening of the killing South invited witness and the deceased, James Lindsay, to drink with him; that deceased declined, saying that he had drank enough, but witness accepted the invitation, and went into the saloon with South to get the drinks, deceased remaining outside; and South then said something about cutting deceased in Texas, and that deceased needn't be too smart, or something to that effect. The court here instructed the jury that the remarks of defendant South were not admissible, and were not to be considered by them as against defendant Finch, and that they were only admissible as against South. The defendants objected to the testimony of Thornton, which referred to the cutting in Texas, but the court, again cautioning the jury that the testimony was only to be considered as against South, overruled the objection, and defendant excepted.

The evidence for the state tended to show that on the night of the killing, at the house of deceased, South, while very drunk and talking incoherently, stated that he went up to Finch and deceased, while fighting, and drew his knife to help Finch, but did not, as Finch was getting the better of deceased; but afterwards, when sober, made different statements as to this matter. When the state, after introducing its evidence in chief, announced that it would rest, appellant, Finch, moved the court to discharge him on the ground that the state had not made out a prima facie case against him. The court overruled the objection, and Finch excepted. As this court holds that "the subsequent evidence supplemented this defect, if it existed," it is not necessary to set out the state's evidence in full up to the time it rested.

When the state rested, South introduced one Joe Henry as a witness in his behalf, Finch's counsel saying that Henry was not introduced for Finch; and, after Henry, several witnesses were introduced, as the bill of exception states, by the "defendants," and then both Finch and South testified as witnesses for the defense; and the testimony of all these witnesses, taken together, tended to show that Finch, South, and Lindsay, the deceased, had been drinking together on the day of the killing at a depot or railroad station, and in the evening started home together, Finch lying in the wagon drunk and asleep when they started, and up to the time of the difficulty they had been apparently on good terms; that the killing occurred after they had gone some distance on their way home, in the public road, and at a place where there was nothing to prevent retreat from an assailant in any direction; that at the time the difficulty commenced, and the killing was done, no one was present but these three, and Finch and deceased were riding side by side behind a wagon driven by South, and deceased (according to the testimony of Finch) asked Finch, "Why do you work with such a man as South? He won't pay you," and Finch replied, "I would rather work with a man who does not pay than a man who has nothing to pay with;" that Finch was then working with South, but had before that worked with deceased, who had settled with Finch satisfactorily; that deceased became angry at Finch's reply, and cursed Finch, and swore he would whip him, and took hold of Finch as he was riding by him, and pulled him; that Finch endeavored to pacify deceased, and told him that he (Finch) meant nothing by the above reply, and was not able or willing to fight deceased; that finally, when deceased was about to pull Finch off his mule, Finch told deceased that if nothing else would do him, and he would not pull him (Finch) off, that he would get down, but did not want to fight deceased; that thereupon, deceased turned Finch loose, and Finch got down on the opposite side of his mule from deceased, and deceased got down on the opposite side of his mule from Finch; that South, seeing this from the wagon, said to them, "Quit your foolishness, or I'll whip you both," and Finch said that he did not want to fight; that as soon as deceased had dismounted he went to the road-side, and cut a stick, and South went to the other side of the road, and cut a stick, intending (according to his testimony) to get between them, and again told them to quit their foolishness, or he would whip them both; that deceased then rushed upon Finch in an angry and furious manner, with the stick in one hand and a knife in the other, cursing Finch, and swearing that he would kill him, and Finch at this time was standing holding his mule; that deceased struck Finck three times over the head with the stick, and after that Finch (thinking, according to his own testimony, that deceased would kill him) commenced cutting deceased, cutting him the first time in the neck; that South then ran up and pushing deceased aside, got between the combatants, and Finch kept cutting deceased and deceased kept striking Finch, over and around South; that finally South got hold of Finch, and held...

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21 cases
  • Holsemback v. State, 7 Div. 156
    • United States
    • Alabama Court of Criminal Appeals
    • November 1, 1983
    ...Consequently, we have no difficulty in concluding that Phillip was not prejudiced by being tried with his brother. See Finch v. State, 81 Ala. 41, 1 So. 565 (1887) (where a confession of one defendant as to a former difficulty between himself and deceased is admitted against himself only, a......
  • Hall v. State
    • United States
    • Alabama Court of Criminal Appeals
    • March 27, 1973
    ...as evidence against the declarant and appellant would have no right to object to it. Baker v. State, 81 Ala. 38, 1 So. 127; Finch v. State, 81 Ala. 41, 1 So. 565; Boswell v. State, 9 Ala.App. 23, 64 So. 188; Segars v. State, 88 Ala. 144, 7 So. 46; Folkes, supra. If appellant anticipated pre......
  • McHenry v. State
    • United States
    • Supreme Court of Alabama
    • December 9, 1965
    ...and sworn. See: Harris v. State, 177 Ala. 17, 19-21, 59 So. 205; Williams v. State, 109 Ala. 64, 65, 66, 19 So. 530; Finch v. State, 81 Ala. 41, 49, 1 So. 565; Smith v. State, 55 Ala. 1, 6-7, 9, 10; Battle v. State, 54 Ala. 93, 94; Birdsong v. State, 47 Ala. 68, 75; Gann v. State, 22 Ala.Ap......
  • Glass v. State
    • United States
    • Supreme Court of Alabama
    • May 31, 1906
    ...to Glass. This evidence was properly admitted. It tended to show preparation on the part of Glass. Ford's Case, 71 Ala. 385; Finch's Case, 81 Ala. 41, 1 So. 565. motion to exclude the evidence of the witness Penler is so patently without merit as to require no discussion. Henry's Case, 107 ......
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