Holland v. State

• Decision Date: 15 June 1909
• Citation: 162 Ala. 5,50 So. 215
• Parties: HOLLAND v. STATE.
• Court: Alabama Supreme Court

50 So. 215

162 Ala. 5

HOLLAND v. STATE.

Supreme Court of Alabama

June 15, 1909

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

John Holland was convicted of murder in the first degree, and he appeals. Reversed and remanded.

It appears that at the time of the killing an adjourned term of the court was being held, in the calling of which no order had been entered for a grand jury, but only the petit jurors had been ordered and summoned. During the progress of the term the court drew and impaneled a grand jury, who investigated the killing and returned the indictment. The motion and pleas addressed to the indictment raise these questions. The facts sufficiently appear in the opinion of the court.

The following charges were given at the instance of the state:

(1) "If you believe beyond a reasonable doubt that defendant, in this county and before the finding of this indictment, purposely killed Putnam by shooting him with a pistol, with wickedness and depravity of heart towards the deceased, and not because of any resistance to arrest by deceased, and that said killing was determined on beforehand and after reflection, for however short a time is immaterial then defendant is guilty of murder in the second degree."

(2) "If, after considering all 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."

(3) "If you believe from all the evidence beyond a reasonable doubt that the defendant is guilty, though you also believe that it is possible that he is not guilty, you should convict him."

(4) "The court has just charged you at the instance of the defendant that each juror must be convinced of defendant's guilt beyond a reasonable doubt before you can convict him. This means that your verdict must mean a unanimous verdict, whether it be for or against the defendant; and although one of your number may have a reasonable doubt of defendant's guilt, this would not authorize you to acquit him."

(5) "If the defendant, in this county and before the finding of this indictment, killed Putnam by shooting him with a pistol with malice aforethought, and not in resistance of arrest, he is guilty of murder; and if the killing was willful, deliberate, malicious, and premeditated, and the deliberation and premeditation existed for only a moment before the fatal shot was fired, the defendant is guilty of murder in the second degree."

(6) "The court charges the jury that before the defendant would be entitled to any protection or justification for taking the life of the deceased, by reason of the official position which the defendant is alleged to have held at the time of the killing, he must have been acting in pursuance of some lawful authority, arming him with the legal right to arrest the deceased, and there must have been such resistance of the arrest by the deceased at the time the shot was fired as to create real or apparent present, impending, imperious necessity for the defendant to kill the deceased, either to protect himself from grievous bodily harm, or to overcome such resistance; and if you should find from the evidence beyond a reasonable doubt that no such necessity existed at the time the shot was fired, that the defendant did not act in good faith, but merely used his official position as a cloak or excuse to take the life of deceased, and that the defendant, in pursuance of a fixed purpose, willfully and with malice aforethought killed the deceased, then this would constitute murder in the first degree."

(7) "If the jury believe from the evidence beyond a reasonable doubt that the defendant went to the home of Putnam with the premeditation to kill Putnam, and, in pursuance of this previous determination, he did kill him and killed with malice, the fact that the defendant had a warrant is no excuse to him, and defendant would be guilty of murder."

(8) "The court charges the jury that, before the defendant would be justified in shooting to kill the deceased, there must have been a sudden, impending, imperious necessity, real or apparent, to shoot, either to save the defendant from grievous bodily harm or to overcome a resistance of a legal arrest."

The following charges were refused to the defendant:

(1) "I charge you that the defendant was under no legal duty to yield to the solicitations or requests of the ladies in or about the home of Putnam not to enter such home, if you believe from the evidence that at the time he had in his possession the warrant of arrest in evidence in this case and was entering the home for the purpose of executing the warrant; but his duty required him to disregard such solicitations and requests, if any were made, and go forward and duly execute the warrant."

(26) "I charge you that resistance to a legal arrest may consist in acts or demonstrations on the part of the party sought to be arrested, which import defiance and indicate an immediate purpose to use violence in resisting, and after such acts or demonstrations the officer may instantly employ such degree or force as is necessary to reduce the party to submission and accomplish the arrest, even to the taking of the party's life, if so necessary."

It is unnecessary to set out the other charges requested by the defendant.

George H. Parker and Callahan & Harris, for appellant.

Alexander M. Garber, Atty. Gen., and Brown & Kyle, for the State.

ANDERSON J.

The indictment was returned by a grand jury specially drawn and organized by the court or judge as provided by section 3249 of the Code of 1907.

Sections 7261 and 3249 of the Code of 1907 are not in conflict, as there is a field of operation for both. Section 7261 provides for the drawing of juries for adjourned or special terms, by the jury commission, upon the order of the clerk, when the judge orders same prior...