Gregory v. State

• Decision Date: 20 December 1906
• Citation: Gregory v. State, 148 Ala. 566, 42 So. 829 (Ala. 1906)
• Parties: GREGORY v. STATE.
• Court: Alabama Supreme Court

42 So. 829

148 Ala. 566

GREGORY v. STATE.

Supreme Court of Alabama

December 20, 1906

Appeal from Circuit Court, Cullman County; D. W. Speake, Judge.

Millard M. Gregory was convicted of murder in the second degree, and appeals. Affirmed.

The defendant was indicted for killing Bill Mann by shooting him with a pistol, convicted of murder in the second degree, and his punishment fixed at 12 years in the penitentiary.

In response to the indictment, on the second trial, he interposed the following plea: "And now comes the defendant, and pleads, and says that he ought not to be put to answer the indictment herein on the charge of murder in the first degree, he having been heretofore, at the February term, 1904, tried by a jury in this court upon said charge and the jury in said trial returned into this court a verdict as follows: 'We, the jury, find the defendant guilty of murder in the second degree, as charged in the indictment and fix his punishment at 12 years' imprisonment in the state penitentiary.' And the defendant says this is an acquittal of the charge of murder in the first degree, and he pleads it as such, and that the offense charged in the indictment now presented is the same offense, and the indictment is the same indictment, as in said former trial. Wherefore defendant prays judgment of the court here whether he should be compelled to answer the said indictment as to the charge of murder in the first degree." The solicitor who prosecutes for the state demurred to this plea "Because it does not aver that the defendant had been tried under this indictment in this case, or for the same offense charged in this indictment, by a court of competent jurisdiction having authority to put defendant upon his trial, and that by a jury duly organized in such court the defendant was acquitted of the offense of murder in the first degree, charged in the indictment in this case. Because said indictment does not aver that the defendant was tried at a term of the court authorized by law to be held." The court sustained the demurrer.

The juror Styles stated that he did not believe in convictions upon circumstantial evidence, and was not challenged by the state. The defendant offered to challenge the juror for cause, and the court declined to permit the challenge for cause, and the defendant excepted. The court asked the juror if he had ever been indicted for murder, and the juror answered, "No." The defendant then requested the court to ask the witness if he had been indicted for murder in the last 12 months, but the court declined, stating that the witness had answered, denying that he had ever been indicted for that offense.

Dr Baird was being examined as the physician who attended the deceased, and was permitted, over the objection of the defendant, to testify that the deceased said to him, when he was making an examination of him, that he had no feeling in feet or legs, and had burning in the stomach.

The witness McConnell testified that he knew Mann, that he saw him before he died, and that Mann said to him that he was not doing well, that he was going to die--was dead already from the stomach down. After this he was permitted, over the objection of the defendant, to state what happened, and what deceased said concerning the difficulty. The defendant objected to this on the ground that no proper predicate had been laid for the admission of dying declarations. The same objections were interposed to Patillo's testimony of dying declarations.

The charges requested by the state and given by the court are as follows: "(1) Gentlemen of the jury, if the killing of the deceased was in a sudden rencounter or affray, caused by the defendant, by the use of a deadly weapon, which was concealed before the commencement of the fight, the deceased having no deadly weapon drawn, and you believe this beyond a reasonable doubt, then you must convict the defendant of murder in second degree; and if you also believe beyond a reasonable doubt that the killing was a deliberate, premeditated killing, then the defendant would be guilty of murder in the first degree. (2) The fact, if it be a fact, that the deceased threatened to whitecap or whip the defendant is no excuse under the law of the defendant, if you are satisfied that he unlawfully killed the defendant. (3) I charge you, gentlemen of the jury, that the doubt that will justify the acquittal must be an actual and substantial doubt, not a mere possible doubt, because everything relating to human affairs and depending on moral evidence is open to some possible or imaginary doubt. (4) The court charges the jury that the mere fact, if it be a fact, that the deceased made threats against the defendant, would not of itself be sufficient to justify the defendant in taking Mann's life. (5) Threats, standing alone, no matter how strong, are no justification for a homicide. (6) I charge you, gentlemen of the jury, that if you believe from the evidence beyond a reasonable doubt that the defendant is guilty, though you also believe it possible that he is not guilty, you must convict him. (7) I charge you, gentlemen of the jury, that if after considering all of the evidence, you have a fixed conviction of the truth of the charge, you are satisfied beyond a reasonable doubt, and it is your duty to convict the defendant. (8) Gentlemen of the jury, if you believe from the evidence in this case beyond a reasonable doubt that the defendant, on the 24th day of December, 1902, left his house and went up the public road, provoked a difficulty with the deceased, and shot him, inflicting wounds causing his death, then he has violated the law, and it is your duty to convict."

The manner of the asking for written in structions by the defendant is set out in the opinion. Charge 1 was as follows: "It is not necessary that there should be actual danger of death or great bodily harm in order to justify the taking of human life; but if the jury are satisfied, from all the evidence in the case, that the circumstances were such attending the fatal shots or the shooting as to impress the defendant with a reasonable belief that at the time of the fatal shot or shots it was necessary, in order to prevent death or great bodily harm to his person, then the jury must acquit the defendant, unless they further find from the evidence that the defendant was not free from fault in bringing on the difficulty."

F. E. St. John, Geo. H. Parker, and J. A. Lusk, for appellant.

Massey Willson, Atty. Gen., for the State.

ANDERSON J.

The plea of former conviction does not aver that the first conviction was by a court of competent jurisdiction. It avers that the conviction was at a time fixed by the "Lusk Bill," which has heretofore been condemned by this court, and not at a time not provided by law for holding the circuit court for Cullman county. Nor does it aver that the defendant was tried at an adjourned or special term of the court. The demurrer to the plea was properly sustained.

The court did not err in putting the juror Styles on the defendant. The fact that he would not convict on circumstantial evidence was a ground of challenge exclusively to the state. Code 1896, § 5018. Defendant cannot complain of the state's waiving such a ground of challenge. Wesley v. State, 61 Ala. 282. Subdivision 3 of section 5016 of the Code of 1896 fixes, among the grounds of challenge for cause, the fact that the juror "has been indicted in the past twelve months for an offense of a similar character as that with which the defendant is charged." The court, therefore, had the right to ask the juror if he had been indicted for murder, but should have confined the inquiry to the past 12 months. The court however, committed no reversible error in this respect, as the record does not show that the juror was put upon the defendant, or that he was challenged by the state for cause. For aught we know, he may have been peremptorily challenged by the state. Nor did the trial court err in refusing to ask the juror if he had been indicted for murder in the past 12 months, as requested to do so by defendant's counsel. He had just testified that he...