Hammond v. State

• Decision Date: 30 June 1906
• Parties: HAMMOND v. STATE.
• Court: Alabama Supreme Court

41 So. 761

147 Ala. 79

HAMMOND v. STATE.

Supreme Court of Alabama

June 30, 1906

Appeal from Circuit Court, Covington County; H. A. Pearce, Judge.

"To be officially reported."

Abb Hammond was convicted of murder in the first degree, and he appeals. Reversed and remanded.

The defendant, Abb Hammond, was indicted, tried, and convicted of killing Bud Tucker by shooting him with a gun. Before entering upon a trial of the cause the defendant moved the court to quash the venire, assigning the following reasons "Because the special venire of 50 names was not drawn as provided by law, in that the presiding judge did not cause the clerk of the court to make out a list of the special venire immediately as provided by section 5404 of the Code and because the clerk did not immediately make out said list and because the presiding judge of the court did not publicly draw from the jury box the names of 50 persons served on the defendant as a special venire from which he is to select a jury in this case, and cause the clerk of said court to immediately make out a list of the 50 names and issue an order to the sheriff and serve the same on the defendant, and because the presiding judge did draw from the box 50 persons as a special venire to try defendant's case, and caused the clerk of said court to place the 50 names so drawn in an envelope and seal the same and put it in his pocket, and did not immediately make out a list of said names, but took the said names away and four hours afterwards made out the list because the said judge did not call out the names so drawn to serve as a special venire in open court, and did not cause the clerk in the presence of the court and in open court to make out a list, but let him seal the same up and take it away in his pocket; because the regular list of the regular venire drawn and summoned to serve during the second week of said term of said court was not served on this defendant, in that C. C. Caxton was drawn and summoned as a regular juror, and no such man was drawn and summoned to appear and serve as a juror for said second week, but that C. C. Caxton was summoned to serve as a juror, when there is no such man in Covington county, but C. C. Croxton answered to the name of Caxton, and said Croxton was placed on the regular panel of the jurors, but was not served on the defendant, and because V. M. Hayes was drawn as a juror on the regular panel, and there was no such man on the regular panel or served on the defendant, but W. V. Hayes was put on the regular panel and not served on defendant." The court overruled this motion. The motion was afterwards amended, but was practically the same motion exemplified. The court, being satisfied from the evidence that there was a mistake in the names of the two jurors, Hayes and Caxton, and that there were no such persons living in Covington county, directed that those two names be discarded, and ordered the sheriff to summon two qualified citizens of the county to serve in their stead. The sheriff complied by summoning C. C. Croxton and M. V. Hayes, who were placed on the regular panel and qualified as jurors.

It appears from the evidence that Hammond was marshal of the town of Florala, and shot and killed Bud Tucker on the streets of said city with a gun, and fired at Jim Tucker, a brother of Bud. The other facts sufficiently appear in the opinion.

There were numerous charges requested by the defendant, some of which were given and 64 of which were refused. Those refused and criticised are as follows: (55) "If in this case the jury do not, upon a consideration of all the evidence, believe that the witness Jim Johnson made the statements which the witness Lawrence testified Johnson did make to him, then Johnson is not impeached." (58) "If any of the state's witnesses have exhibited malice against the defendant or anger, or have testified to contradictory statements and thereby satisfied the jury that they have not testified truly, and are not worthy of belief, and the jury think their testimony on these accounts should be discarded, they may discard it altogether." (64) "If upon all the evidence the jury believe that the testimony as to the good character of the witnesses Jim Johnson and Bryant is sufficient to overcome the impeaching testimony against these, if there is impeaching testimony, they should weigh their testimony in the light of this proof of good character along with all the other evidence in the case."

The court gave at the request of the solicitor the following charges: "(A) The court further charges the jury that they must consider the testimony of Abb Hammond, the defendant, in the light of the interest he has in the prosecution. (B) The court further charges the jury that all the charges read by defendant's counsel do not in any way conflict with, but are in harmony with, the charge given by the court, and they should not consider them to the exclusion of the charge of the court, because the written charges are only a different way of expressing the law. (C) The court further charges the jury that it makes no difference in what language the definition of a reasonable doubt is clothed. When it is boiled down and brought to its last analysis, it means no more or less than a doubt growing up out of all the evidence in the case for which you can give a reason, as contradistinguished from a mere possibility."

C. E. Reid, J. F. Stallings, and M. Sollie, for appellant.

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

DENSON J.

Abb Hammond was convicted in Covington circuit court of murder in the first degree and sentenced to imprisonment in the penitentiary for life. From the judgment of conviction the defendant has appealed.

The motion to quash the venire was properly overruled. Section 5004 of the Code of 1896 does not require that the presiding judge shall announce the names of the jurors as they are drawn from the box; and, while we think it is the better practice for the clerk to make a list of the names immediately as they are drawn from the box by the presiding judge, it is unnecessary in this instance for us to decide that the statute is mandatory in this respect, as the bill of exceptions affirmatively shows that the list that was made by the clerk was composed of the identical names that were drawn by the presiding judge and placed in the envelope by the clerk, and, further, that the names served on the defendant were copies of the names on the list so made out, so that we are satisfied no injury could possibly have resulted from the manner in which the names of the jurors were drawn and disposed of, nor from the delay of the clerk in making the list. Code 1896, § 4333. It is shown that a copy of the names of the jurors was served on the defendant one entire day before the day fixed for the trial. This was a compliance with the law.

Evidently there was a mistake in the names of the jurors Croxton and Hayes; but it is statutory, and has been many times decided by this court that this furnishes no ground for quashing the venire. Code 1896, § 5007; Kimbrel's Case, 130 Ala. 40, 30 So. 454; Longmire's Case, 130 Ala. 66, 30 So. 413. The court conformed to the statute in discarding the names of the two jurors and ordering two others to be summoned. Code 1896, § 5007.

The exceptions to the ruling of the court on the admissibility of evidence are numerous. The sixth, seventh, eighth, and ninth relate to the ruling permitting the state to prove that immediately after shooting the deceased the defendant shot the brother of the deceased. In this there is no error. Shooting the brother was a part of the res gestæ. Seams' Case, 84 Ala. 410, 4 So. 521; Smith's Case, 88 Ala. 73, 7 So. 52; Plant's Case, 140 Ala. 52, 37 So. 159. Evidence that some of the shot from the gun passed through the witness' clothing was also of the res gestæ and admissible.

The court properly limited the defendant to proof of the charges against the deceased for violation of the ordinances of the town. Details of the acts and conduct on the part of the deceased upon which the charges were based were incompetent and inadmissible. Carden's Case, 84 Ala. 417, 4 So. 823; Gordon's Case, 140 Ala. 29, 36 So. 1009; Harkness' Case, 129 Ala. 71, 30 So. 73. Moreover, the proof was without conflict that the deceased was carrying a concealed weapon and that the defendant saw the deceased when he concealed it--that the offense of carrying a concealed weapon was committed in defendant's presence; and the defendant testified that he went up to arrest deceased for carrying the pistol concealed at that time, and for "other things" before. So defendant had the benefit of the evidence that he was an officer and attempting to arrest the deceased for an offense that was committed in his presence. The defendant was a policeman at the time the killing occurred, and as such he had the authority, and it was his duty, to arrest persons for violations of the ordinances of the town; and this he could do without warrant if the offense was committed in his presence. To submit to an arrest under such circumstances was the correlative duty of the deceased. In Russell on Crimes it is stated: "In all cases whether civil or criminal, where persons having authority to arrest or imprison, and using the proper means for that...