Griffin v. State

• Decision Date: 20 December 1890
• Citation: 90 Ala. 596,8 So. 670
• Parties: GRIFFIN v. STATE.
• Court: Alabama Supreme Court

8 So. 670

90 Ala. 596

GRIFFIN v. STATE.

Supreme Court of Alabama

December 20, 1890

Appeal from criminal court, Jefferson county; S.E. GREENE, Judge.

This was a trial for murder. Code Ala. § 4333, provides that on the trial for any offense which may be punished capitally or by imprisonment in the penitentiary it is a good cause of challenge by the state that the person has a fixed opinion against capital or penitentiary punishment, or thinks conviction should not be had on circumstantial evidence. The appellant in this case was indicted, tried, and convicted of murder in the first degree, and sentenced to suffer death. The first three exceptions reserved by the defendant on the trial in the court below are sufficiently set forth in the opinion. It was shown by the evidence that the defendant killed the deceased, one Garrett, during the month of September, 1889, between 7 and 9 o'clock P. M. The state offered to prove that about two weeks previous to the killing the defendant had made threats against the deceased, and the court overruled the defendant's objection to this evidence, and allowed the same to go to the jury, to which ruling the defendant duly excepted. The defendant also reserved exceptions to the court's allowing evidence introduced to the effect that in May preceding the killing the defendant had said he would "get even" with the deceased for having him (the defendant) arrested; and also evidence of a difficulty between the defendant and the deceased, which occurred about four months previous to the killing. The testimony of a witness who had been examined before the committing magistrate, and which had been reduced to writing, was admitted by the solicitor, and allowed to go to the jury as evidence. There was attached to this evidence a diagram of the locality where the killing occurred, but this was not introduced in evidence. In his argument to the jury the defendant's counsel undertook to comment on this diagram; but, upon objection by the solicitor, the court refused to allow the defendant's counsel to remark upon said diagram, and the defendant duly excepted. In his closing argument to the jury the solicitor used the following language: "Every day men are shot down in open daylight in our country, and other cases similar to this have occurred in open daylight in your midst." The defendant excepted to these remarks as soon as they were made. The bill of exceptions states, in this connection, that "in using these remarks the solicitor was replying to the argument of defendant's counsel, wherein said counsel had argued that it was unreasonable, as claimed by some of the state's witnesses, that defendant had shot Garrett in so public a place and public manner." The solicitor, continuing his argument to the jury, also made use of the following language: "The object of the criminal law is to protect society. The law takes no special delight in punishing this man, nor of avenging the death particularly of Garrett, but to furnish an example to evildoers, and protect society from harm, upon the theory that a man who would commit a murder of this kind, would murder me, or murder you, or rape our women." The defendant thereupon excepted to these remarks; and the bill of exceptions states: "The court immediately excluded the remarks of the solicitor from the jury on objection being made by defendant's attorney." The other facts and rulings are sufficiently set forth in the opinion of this court.

B M. Allen, for appellant.

W L. Martin, Atty. Gen., for the State.

COLEMAN J.

The defendant was tried for murder, convicted, and sentenced to suffer death. The trial coming on to be heard, the defendant moved the court to quash the venire (1) on the ground that a copy of the indictment had not been served upon him as required by law; and (2) upon the ground that a copy of the venire had not been served upon him as required by law. In support of the motion the defendant proved by one John G. Bradly that he wrote the return of the sheriff, and signed the sheriff's name thereto, without any special direction of the sheriff in that particular case but under a general request of the sheriff to write his return in cases in which a special venire was summoned; that Williams, the regular deputy-sheriff, brought the indictment and venire to witness, and at his request, and in his presence, the return was written by witness. Section 4449 requires that a copy of the indictment and a list of the jurors summoned for his trial be served on defendant one entire day before the day set for trial. The return of the sheriff is evidence only to show that the statute has been complied with. If he had made no return, or a defective return, at the time of the trial, or even after the conviction of the defendant, during the term, the sheriff was authorized to make or amend his return, according to the real facts. Kenan v. State, 73 Ala. 16. The deputy-sheriff, Williams, offered to testify that he, as such deputy-sheriff, did in fact serve a copy of both the indictment and venire upon the defendant in person, as required by law. The defendant then in open court admitted this to be true. It is difficult to perceive of any higher evidence of a compliance with the statute than the voluntary acknowledgment by the defendant in open court; and this would have justified the court in denying the motion to quash, if there had been no return by the sheriff entered, showing a compliance with the statute. Wesley v. State, 52 Ala. 186. The court asked one J. A. Ledbetter, who had been drawn to serve as a juror, "if he had any fixed opinion against capital or penitentiary punishment, or that a conviction should not be had upon circumstantial evidence," to which Ledbetter replied: "I have no fixed opinion against capital or penitentiary punishment, or that a conviction should not be had on circumstantial evidence, but I would not hang a man on circumstantial evidence;" whereupon the court held that said Ledbetter was not a competent juror, and ordered him to stand aside for cause. If it was necessary, in order to sustain the ruling, we would presume the court "so held" upon motion of the solicitor, but the action of the court would have been free from error, if he had so held ex mero motu. The law secures to a defendant a fair and impartial trial by competent and duly-qualified jurors. To secure this, every necessary precaution and safeguard is thrown around him. He can ask no more from the state. A juror who will not affix the death penalty merely because the conviction is had on circumstantial evidence is not a competent and qualified juror, contemplated by the statute. He is not competent under either section 4331 or...