Gregg v. State

• Decision Date: 03 April 1895
• Citation: 106 Ala. 44,17 So. 321
• Parties: GREGG v. STATE.
• Court: Alabama Supreme Court

17 So. 321

106 Ala. 44

GREGG v. STATE.

Supreme Court of Alabama

April 3, 1895

Appeal from circuit court, Wilcox county; John Moore, Judge.

The appellant, Julia Gregg was indicted jointly with Nancy Gregg for infanticide. Nancy Gregg was acquitted, and Julia Gregg was convicted of murder in the second degree, and sentenced to the penitentiary for 10 years, and appeals. Reversed. The defendant Julia Gregg, asked the court to give to the jury the following charge, and duly excepted to the court's refusal to give it: "The court charges the jury that proof of contradictory statements or declarations on a material point, made by the witness Martha Gregg, may be sufficient to raise a reasonable doubt in the minds of the jury as to the truth of the testimony of the witness Martha Gregg."

Virginius W. Jones, for appellant.

W. C Fitts, Atty. Gen., for the State.

HARALSON J.

1. Section 13 of the act of February 28, 1887, as found in Cr Code, pp. 132-135, as amended by the act of February 28, 1889 (Acts 1888-89, p. 77), provides, that upon the trial of a capital case, the defendant shall be entitled to 21 peremptory challenges, and the state to 14, and when two or more defendants in such a case, are on trial jointly, each defendant shall be entitled to one-half of the peremptory challenges allowed by the act. The defendants in this case were tried jointly. While selecting the jury, the defendant Julia Gregg, separately challenged, peremptorily, 11 jurors, each of whom had been accepted by the state. Another juror was drawn and duly examined and pronounced qualified by the court, and was accepted by the state. Defendant, Julia, then proposed to challenge said juror peremptorily for herself, claiming that each defendant was entitled to 21 peremptory challenges; and so, she challenged each other juror, found qualified, and accepted by the state, until the jury was completed, reserving an exception each time, to the refusal of the court to allow her to do so. The contention is, that one-half of 21 being 10 1/2, the defendant was entitled to that number, no less and no more, and, the statute being impossible of execution, the general statute in the Code allowing 21 peremptory challenges prevailed. But, that is too technical. The court in the execution of the law, allowed defendant 11 challenges and that, certainly, gave her 10 1/2, and a half besides, which she accepted, and for which she cannot complain. If in the execution of this statute, the court allows the defendant 11 peremptory challenges, it complies with the law, and to refuse less, by allowing only 10, would be an error. Any other construction would be so technical and wanting in good reason, as not to admit of adoption.

2. Walter E. Sanderson, examined as a witness, stated that he and three other negro men, hearing of the rumored birth and destruction of the infant of Martha Gregg, went to the house where Martha, and her mother, Julia, the defendant, and Nancy Gregg, the grandmother of Martha lived, to investigate the matter. There can be no question, that they appeared to Julia and Nancy as clothed with some authority to institute the investigation. There was nothing wrong in their mission, but their coming must have aroused apprehensions and fears in the minds of the defendants, and have presented the appearance of authority to them. They informed defendants of their mission told them they had heard that Martha had had a child, and it had been done away with. They denied that any child had been born. Sanderson and those with him, still insisted, that a child had been born there and made away with, and upon their telling them what had been done with it. After their repeated denials of such fact, Sanderson testified he said to them: "Tell us the truth about it all, and that will be the last of it." The defendant Julia, shortly after that, said: "Yes, Martha did have a baby, and I...