Hooten v. State

• Decision Date: 18 December 1913
• Citation: Hooten v. State, 64 So. 200, 9 Ala.App. 9 (Ala. App. 1913)
• Parties: HOOTEN v. STATE.
• Court: Alabama Court of Appeals

64 So. 200

9 Ala.App. 9

HOOTEN v. STATE.

Court of Appeals of Alabama

December 18, 1913

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

Doyle Hooten was convicted of murder in the second degree, and he appeals. Affirmed.

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

(1) "I charge you all must agree before you can render a verdict."

(2) "If you believe from all the evidence, beyond a reasonable doubt, that Doyle Hooten entered the fight willingly, he cannot invoke the doctrine of self-defense."

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

The following charges were refused defendant:

(2) "Before you can find defendant guilty of murder in the second degree upon the ground that the killing was done with a deadly weapon concealed at the time, the state must show by the evidence, beyond all reasonable doubt, that the weapon was concealed, and deceased did not know that defendant had the pistol when the fight commenced; and in addition to this the state must show, beyond all reasonable doubt, that defendant was the assailant, that he was the aggressor and provoked the difficulty, and, if the jury have any reasonable doubt upon either one of these propositions, then the jury should not find defendant guilty of murder in the second degree on that ground."

(3) "The jury may take into consideration the fact, if it be a fact, that the witness Crumley got his gun and came back to the scene of the shooting a short time after said difficulty occurred, in determining what weight you will give to the testimony of said witness Crumley."

It appears from the evidence that Higgins, the deceased, was shot by defendant some time in May, 1912, and that he died January 7, 1913; that after he was wounded he was able to be up and about at times approximately well, and at other times not, and that, from three or four weeks before he died, he was thrown from a wagon and fell upon the back of his head and shoulders. He died from an abscess on the brain produced by a ball, from one of the shots, splitting; part going through the skull and entering the brain, the other part making merely a flesh wound. The attending physicians performed a post mortem, and testified as above indicated.

F.E St. John, of Cullman, for appellant.

R.C. Brickell, Atty. Gen., and W.L. Martin Asst. Atty. Gen., for the State.

PELHAM J.

The judgment entry shows that the jury was drawn in open court and that the order setting the case, fixing and drawing the venire, and arraigning the defendant is in strict compliance with the law. The fact that it was made to appear, on a motion to quash the venire, that on the list served on the defendant one of the jurors drawn to serve on the special venire was the same person as one of the regular jurors drawn and summoned for the week the case was set for trial was not a sufficient ground upon which to grant the motion to quash the venire under the present jury law. No more so than if there was no such person, or that the juror drawn on the special venire had been disqualified from serving on the jury to try the defendant for any other reason, as for instance had he been related to the parties within the degree that disqualifies, or a member of the grand jury that found the indictment, or because there had been a mistake in the name of the person summoned, so long as the number of jurors was not reduced below the number required by law in the trial of capital cases. Acts 1909, p. 305 et seq.; Savage v. State, 174 Ala. 94, 57 So. 469; Sims v. State, 176 Ala. 18, 58 So. 379, opinion on rehearing; Gibbs v. State, 7 Ala.App. 30, 60 So. 999; Costello v. State, 58 So. 202; Perry v State, 59 So. 150; Johnson v. State, 5 Ala.App. 43, 59 So. 708; Lewis v. State, 64 So. 537.

Whether or not the deceased was drinking or drunk at the time he fell out of the wagon at a time several months after he was shot by the defendant, and three or four weeks before his death, was no part of the res gestae and could have no possible tendency to prove or disprove any issue before the court, and there was no error in refusing to allow the defendant to make proof of such fact, if it was a fact.

The three charges given at...