Gater v. State

• Decision Date: 21 July 1904
• Citation: 141 Ala. 10,37 So. 692
• Parties: GATER v. STATE. [a1]
• Court: Alabama Supreme Court

37 So. 692

141 Ala. 10

GATER v. STATE. ^[a1]

Supreme Court of Alabama

July 21, 1904

Appeal from Circuit Court, Perry County; John Moore, Judge.

John Gater was convicted of murder, and he appeals. Affirmed.

The minutes of the terms of the court at which the indictment against the defendant was preferred contained the following caption: "State of Alabama, Perry County. Circuit Court Fall Term, 1903. Be it remembered that at a regular term of the circuit court begun and held in and for the state and county aforesaid, at the courthouse in Marion, on Monday, the 2d day of November, 1903, it being the eighth Monday after the last Monday in August, 1903, present Hon. John Moore judge of the Fourth Judicial Circuit, presiding, the following proceedings were had, to wit." There then follow a recital of the grand jurors who were summoned, the organization of the grand jury, and the appointment of a foreman of said grand jury. The indictment which charged the defendant with the murder of William Whitehead by shooting him with a pistol contained the following caption: "The State of Alabama, Perry County. Circuit Court, Spring Term 1903." This indictment was indorsed, "A true bill," and was signed by the person who was appointed by the court, in the order hereinabove referred to, as foreman of the grand jury. There was also indorsed on this indictment the following statement, "Filed in open court 4th day of November, 1903," which was signed by the clerk of the court. The defendant demurred to the indictment upon the grounds that it shows upon its face that it was not found at the spring term of 1903 of the circuit court, and the indorsement and return thereon showed that it was not found at the fall term of 1903 of said court. This demurrer was overruled.

Before entering upon the trial of the case, the defendant moved the court to quash the venire served upon the defendant upon the ground that the name of E. T. Fowler was drawn as a special juror of said case, and his name was on the copy of the venire served on the defendant as a juror as residing in one of the precincts of said county, and that, as a matter of fact, no person named E. T. Fowler lived in said county at the time of the drawing of said special jury, or at the time of the trial. Upon the hearing of this motion, it was shown that one E. T. Fowler had lived in the designated precinct in said county, but had removed out of the state some years ago. The court overruled the motion to quash the venire, and to this ruling the defendant duly excepted.

On the trial of the case it was shown that William Whitehead was killed by the defendant shooting him with a pistol; that at the time he was killed the defendant was shooting at one John Hardie, who was standing on the porch of his (Hardie's) store; that while the defendant was shooting at Hardie the deceased was in Hardie's store; and that one of the balls from the defendant's pistol entered the store, and struck the deceased in the back, inflicting a mortal wound, from which he died in a few minutes. There was also evidence introduced by the state that the defendant had made repeated threats against said John Hardie, and had stated on the date of the homicide that he was going to kill him. The other facts of the case are sufficiently stated in the opinion.

The bill of exceptions contains the following recitals as to the court's oral charge and the defendant's exceptions thereto: "The court, in its oral charge to the jury stated to them, among other things, that drunkenness was no excuse for crime, except in those cases where the intent was an essential element for the crime; that in such cases, if at the time of the commission of the alleged offense it is shown that the defendant was so drunk as to be mentally incapable of forming the specific intent necessary to constitute the crime, then he cannot be convicted of that offense. 'Drunkenness is defense matter, and, when relied on by the defendant to exculpate himself, the burden of proof is upon him to show it, and to show he was mentally incapable at the time, by reason of his drunkenness, of forming the specific intent necessary to constitute the offense. The law does not require that this mental incapacity should be established by the defendant to the entire satisfaction of the jury. It is sufficient if, after considering all the evidence, the jury have a reasonable doubt as to whether the defendant was mentally capable of forming such specific intent. Applying this law to this case, if you believe from the evidence that the defendant at the time of the shooting was so drunk as to be mentally incapable of forming the specific intent to take the life of John Hardie, then you cannot convict him of murder in either degree; or if, after considering all the evidence, you have a reasonable doubt as to whether said defendant had such mental incapacity at the time, you cannot convict him of murder in either degree.' The defendant excepted to so much of the foregoing statement as placed the burden of proving drunkenness and its extent upon the defendant."

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: "(14) The burden in this case is not on the defendant to show that he was incapable of forming an intention to kill, but the jury must believe from all the evidence in the case, beyond a reasonable doubt, that at the time of the killing of the deceased, Whitehead, the defendant was capable of forming an intention to take human life, before they can find the defendant guilty of murder." "(18) If the jury believe from all the evidence, beyond a reasonable doubt that, at the time the defendant made the shot that killed Whitehead, the defendant could not see John Hardie, then the defendant cannot be as guilty as if he had in fact shot at John Hardie. (19) If the jury believe that Whitehead was killed by the defendant by a pistol shot which was not aimed at said Whitehead, and if they further believe that at the time said shot was fired the said defendant could not see John Hardie, then the jury cannot punish the defendant as though he had aimed the shot at said John Hardie. (20) The court charges the jury that if, after looking at all the evidence in this case, they have a reasonable doubt as to whether or not the defendant saw John Hardie at the time he fired the first two shots, if you find that he fired said shots, you cannot find the defendant willfully, maliciously and premeditatedly tried to kill said John Hardie. (21) The court charges the jury that it is a matter of common knowledge that a man who is so drunk that he cannot scarcely walk cannot become perfectly sober in two hours, or in two hours and a half, without artificial aid of some description. (22) The court charges the jury that, under the law in this case, they cannot convict the defendant of murder in the first degree unless, after looking at all the evidence in the case, they are convinced beyond all reasonable doubt, to a moral certainty, that at the time the defendant fired the first two shots, if you find that he fired said two shots, defendant saw John Hardie, and that the defendant fired the first two said shots with a willful, deliberate, malicious, and premeditated intention to unlawfully kill John Hardie. (23) The court charges the jury that if they believe from the evidence that at the time the defendant fired first two shots, if you believe he fired them, defendant did not see John Hardie, and if you further believe that John Hardie took two or three steps north, towards the north end of the porch in front of the store, and in the direction of the defendant, and commenced firing at the...