Hanners v. State

• Decision Date: 05 April 1906
• Citation: 147 Ala. 27,41 So. 973
• Parties: HANNERS v. STATE.
• Court: Alabama Supreme Court

41 So. 973

147 Ala. 27

HANNERS v. STATE.

Supreme Court of Alabama

April 5, 1906

Rehearing Denied July 6, 1906.

Appeal from Circuit Court, Clay County; John Pelham, Judge.

"To be officially reported."

George Hanners was convicted of murder, and he appeals. Affirmed.

The defendant and Barney Worthey were jointly indicted for killing Tom Waldrop by shooting him with a gun or pistol. The present defendant demanded a severance, and was tried alone. When the case was called at a former term of the court motion was made to quash the special venire. The facts upon which this motion was based were that the jury commissioners, in drawing the grand jurors and petit jurors for the court discarded six names, and discovering that there were not enough names left in the jury box from which to draw special venire, partially filled the box by putting therein the names of the qualified male citizens in beats 10 and 11 and part of 14. The court granted the motion to quash the venire continued the cause, and declared the jury box invalid. The commissioners then met, discarded the old jury box, and made up a new jury box by placing therein the names of all the qualified male citizens of the county. From this new box, the special venire to try this particular case was drawn. The defendant objected to the drawing of a special jury from this box and for grounds of objection set out the facts as above stated. This objection being overruled, and the special venire being drawn from the box, he made a motion to quash the special venire on the ground and facts as above set out. The motion to quash was overruled.

The state offered testimony tending to show that just previous to the difficulty Bud Orr called defendant into the store near which the difficulty took place and asked him if he was going to stick up to him as he promised to do, as he was about to have some trouble. Worthey also called defendant, and asked him if he was going to stick up to old man Bud Orr, as it was agreed they should do, and defendant replied that he was, and Worthey replied be sure and run a little before you do it. That immediately after the conversation defendant walked out of the store and commenced the difficulty by calling deceased a d___ned liar, and in which difficulty the fatal shooting occurred. The evidence in this connection tended to show that immediately after these conversations and after the lie had been passed, deceased went into the store and procured some weights and attempted to strike the defendant but was prevented from doing so. That deceased was on one side of the store building and Hanners and Worthey on the other side with a crowd around them. That Hanners pushed the crowd aside with the assistance of Worthey, and came around the corner of the store to where he could see deceased when he commenced to fire on defendant inflicting the fatal wound. Worthey then remarked: "Well, you have fixed him now, and we had better go," and defendant said, "Yes, get your horse and we will go." The other facts necessary to an understanding of the opinion sufficiently appear therein. The counsel, in arguing the case for the defendant, said "The solicitor claims a conspiracy in this case between the defendant, Barney Worthey, and Bud Orr. Why was Bud Orr never indicted? If he was in the conspiracy, why hasn't the state got him here? Where is Bud Orr?" No objection was interposed to this argument. The solicitor, in his closing argument, said: "Defendant's counsel has asked why it is that the state did not have Bud Orr here upon the trial of this cause. It seems to me that if any one could be expected to have Orr here, it would be the defendant. From this evidence it is clearly shown that Orr and the defendant and his co-conspirator, Worthey, were friendly, and together on that day, and if no conspiracy existed between these parties, it would be an easy matter for them to have all present in order to explain or deny this conspiracy. Defendant objected to this argument and moved to exclude it.

The defendant requested the following written charges which were refused:" (3) I charge you that if you believe from the evidence that Waldrop accused Hanners of meddling with or encouraging the difficulty between Waldrop and Orr, then it was Hanners' right to have repudiated any such accusation if it was false in no uncertain terms. (4) I charge you that the evidence in this case fails to show that there was any conspiracy between Hanners and Worthey, or Hanners, Orr and Worthey to take the life of Waldrop. (5) I charge you that if you believe the evidence in this case, the defendant could not be convicted on the theory that he had entered into a conspiracy to take the life of Waldrop. (6) I charge you that the evidence of Jim Cotney on the preliminary trial is not the evidence that you must consider as being the evidence of Cotney on the present trial, but you will take the written showing signed by Hanners as being exactly what Cotney would swear if present, and give it just such weight and consider it just as you would if Cotney had been here, and sworn to it from the stand." "(10) I charge you that if you believe from the evidence that Waldrop had a shotgun in his hand in a threatening manner and Hanners heard a number of voices hollering, 'Look out George, he is going to shoot you with a shotgun.' and that Hanners immediately stepped from behind the corner of the house and saw Waldrop with a gun pointing towards him, and acting in the honest belief that he was in danger of being shot and killed by Waldrop then it would make no difference whether...