Hall v. State

• Decision Date: 30 May 1901
• Citation: 30 So. 422,130 Ala. 45
• Parties: HALL v. STATE.
• Court: Alabama Supreme Court

30 So. 422

130 Ala. 45

HALL v. STATE.

Supreme Court of Alabama

May 30, 1901

Appeal from circuit court, Cherokee county; J. A. Bilbro, Judge.

Joseph Hall was convicted of murder, and he appeals. Reversed.

At the July term of the Cherokee circuit court, during the first week of said term, the court arraigned the defendant, and set Tuesday of the second week of said court, which was the week for the trial of civil cases, as the day for the trial of the defendant. To this action the defendant objected, and duly excepted to the court's overruling his objection. Upon the cause being called for trial on Tuesday of the second week,-the day previously set,-the defendant objected to going to trial upon said day, on the ground that it was during the week set apart for the trial of civil cases. The court overruled the objection, and the defendant duly excepted. The defendant moved the court to quash the special venire upon several grounds. One of the grounds of this motion was that the Christian names of the persons upon said special venire were not given, only the initials of said names. The other ground of the motion, which is reviewed on the present appeal, is sufficiently shown in the opinion. Under the opinion it is unnecessary to set out in detail the remaining grounds of said motion. The court overruled the motion, and the defendant duly excepted.

On the trial of the case it was shown that Elizabeth Gage, the wife of Lon Gage, was killed late at night-sometime after 12 o'clock-by being shot with a pistol. The evidence for the state tended to show: That the defendant and James O'Bannon came to the house of Lon Gage after 12 o'clock on the night of the killing, and asked said Gage to let them spend the night. That upon Gage telling them that he could not accommodate them, they then asked him to give them a drink of whisky. That Gage got up, and gave them the drink of whisky. That the defendant and O'Bannon walked in the house, and commenced to talk with Gage's wife and another woman, staying at the house. That thereupon the defendant and O'Bannon became very boisterous, and commenced cursing, and Lon Gage ordered them to leave his house. Upon their declining to do so, and saying they would do so when they got ready, Gage left the house, and went to the home of a neighbor, for the purpose of borrowing a pistol. That he did not get the pistol, and upon his returning to his house he found the defendant in the room where his wife was, talking to her, and he again ordered him to leave the house. That as he entered the room he picked up a stick of wood in the kitchen, and when he went in the room and lighted the lamp, the defendant jumped on him, and commenced to drag him into the hall. That thereupon his wife begged the defendant and O'Bannon not to kill her husband, and got hold of Lon Gage, and tried to keep the defendant from dragging him into the hall. That said Elizabeth Gage was screaming all the time. The defendant told Elizabeth Gage to stop her noise, and turn Lon Gage loose and, upon her declining to do so, he reached his arm over Lon Gage and fired, the shot killing Elizabeth Gage. Other evidence was introduced showing that Lon Gage, the defendant James O'Bannon, and others had, during the early part of the night, been together on the mountain, a short distance from Gage's house, on a whisky wagon, where they had been drinking together. The evidence for the defendant tended to show that Lon Gage had invited the defendant and O'Bannon to go to his house that night; that the invitation was extended when Gage was leaving them; that they were unable to go at that time, but did go later; and that it was in response to this invitation that they were present at his house at the time of the killing. The evidence for the state in rebuttal to this tendency of the defendant's evidence tended to show that when Lon Gage separated from the defendant, James O'Bannon, and the others who were together at the whisky wagon, he asked the defendant and O'Bannon to go to his house with him to get a drink; and that upon their declining to go he left, and went home and went to bed. The defendant, as a witness in his own behalf, testified that he did not shoot Elizabeth Gage; that after Lon Gage left the house to go for a pistol he went into the hall, and apologized to Mrs. Gage for any disturbance he had created, or for any remarks that he had made; that during the time he was talking with Mrs. Gage he went into her room; that while in the room Gage returned, and, cursing the defendant, said that he would make him leave, and then started towards the defendant in a threatening manner; that the defendant grabbed Gage, and while he was dragging him from the room, and while Mrs. Gage was trying to hold her husband back, some one fired a pistol, and the shot killed Mrs. Gage. The defendant also testified that O'Bannon was the first to go into the house, and this seemed to make Gage mad, and it was at this time that he ordered them out of the house, and, upon their refusing to go, he went for the pistol. The defendant sought to show by several witnesses examined that Gage and his wife did not live peaceably together; that he had treated her cruelly, and had made rough, unkind statements about her. The state objected to the introduction of such evidence at each time the defendant sought to introduce it, the court sustained each of such objections, and to each of such rulings the defendant separately excepted. During the examination of Lon Gage as a witness, he testified that when the defendant grabbed him, and was dragging him to the door, his wife caught hold of him, and said: "Please don't kill my husband. What will become of me and my children?" The defendant objected to these statements of the witness, and moved to exclude the same from the jury, on the ground that it was illegal, irrelevant, and incompetent evidence. The court overruled the objection, and the defendant excepted. The witness Gage further testified that after the defendant had sought his wife, and had dragged him out into the hall, he started to hit him, when O'Bannon said to him: "Don't hit him. You have killed his wife." To this statement of the witness the defendant objected, and moved to exclude it from the jury, on the ground that it was illegal and irrelevant evidence. The court overruled the objection, and the defendant duly excepted. The defendant introduced witnesses who contradicted by their testimony the testimony of the witness Gage as to some of the material facts testified to by him. The defendant also introduced evidence showing that the characters of Lon Gage and Elizabeth Gage were bad, and that his character was good. There was also evidence on the part of the defendant that Lon Gage's character for truth and veracity was bad.

Upon the introduction of all the evidence, the court, at the request of the defendant, gave to the jury 30 written charges. The defendant also 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: "(1) The court charges the jury that the humane provision of the law is that upon circumstantial evidence there should not be a conviction, unless to a moral certainty it excludes every other reasonable hypothesis than that of the defendant's guilt. No matter how strong may be the circumstances, if they can be reconciled with the theory that some other person may have done the guilty act, then the guilt of the accused is not shown by that full measure of proof the law requires, and the jury cannot convict the defendant. (2) The court charges the jury that the want of more evidence in favor of innocence than there is in favor of guilt does not necessarily determine that the jury may not have a reasonable doubt of guilt, and acquit the defendant. (3) The court charges the jury, if defendant merely went to Gage's house to get whisky from Gage, this was not a wrongful act. (4) The court charges the jury, if the jury believe from the evidence that Gage has been...