Hornsby v. State

• Citation: 94 Ala. 55,10 So. 522
• Parties: HORNSBY v. STATE.
• Decision Date: 03 February 1892
• Court: Supreme Court of Alabama

10 So. 522

94 Ala. 55

HORNSBY v. STATE.

Supreme Court of Alabama

February 3, 1892

Appeal from circuit court, Pike county; JOHN P. HUBBARD, Judge.

L Hornsby was convicted of murder in the second degree, and appeals. Reversed.

Upon the formation of the jury, as the names of the jurors summoned for the trial were drawn from the box, and were examined on their voir dire as to the cause of challenge, the defendant requested the court to ask the persons so drawn "if they were willing to accord to the defendant, who was a negro, as fair a trial as if he was a white man." The court refused to propound said question to the persons so drawn, and defendant excepted. The evidence introduced by the state tended to show that when the deceased, who was drunk, was riding home with the defendant in a wagon they were heard talking in a loud voice. One of the persons exclaimed, with an oath, "Don't throw me out!" That just shortly after that the defendant was seen driving at a rapid pace alone in the wagon, and the deceased was afterwards found in the road about where the exclamations were heard, with his throat cut. That the defendant went up to the plantation on which he lived, and told the proprietor, one Col. Perdue, "that a man had gotten tangled up in the wheels of the wagon, and he had better go down and see to him; that he did not know how badly he was hurt;" and that, upon Col. Perdue's going down the road, he found deceased lying in the road, dead with a wound in his neck. The evidence further shows that the defendant fled when the officer went to arrest him; that the officer, in arresting the defendant while he was fleeing drew a pistol on him, and carried him back to the house in which he lived; that while he was sitting at the door waiting for his coat to be brought to him, and while he was in the custody of the officer, who had a pistol drawn, and was holding it in his hand, but was not threatening, nor pointing it towards, the defendant, a statement was made by the defendant to the officer to the effect that the deceased fell out of the wagon, and got his head hung in the wheel, and stuck a wagon-spoke in his neck. The defendant objected to the introduction of this testimony, and moved to exclude the same, on the ground that it was not voluntarily made by the defendant. The court overruled this motion, and the defendant duly excepted. The defendant's testimony tended to show that the defendant came to his death by accident; that he fell out of the wagon, and caught his head in the wheel, which had a broken spoke in it, and that this spoke stuck in the deceased's throat, which wound caused his death. The defendant offered to introduce in evidence a piece of wood, which was cut, and which purported to be similar to the broken spoke at the time the accident occurred. The state objected to the introduction in evidence of this piece of wood. The court sustained the objection, and the defendant excepted. The broken spoke had previously been cut out of the wheel, and introduced in evidence by the state, but the evidence was in conflict as to whether the spoke was, at the time of the injury, sharpened. One witness testified that he examined the spoke at the time it was cut out of the wheel, and called Col. Perdue's attention to it, and asked him to preserve it. The state objected to the latter part of this evidence, which objection the court sustained, and the defendant excepted. The court in its general charge, among other things, instructed the jury as follows: "Murder in the first and second degrees differ, in that in murder in the first degree there must be deliberation and premeditation; whereas, in murder in the second degree, these elements of deliberation and premeditation or formed design are absent or wanting; murder in the first degree being more atrocious than murder in the second degree, by reason of deliberation and premeditation." To the giving of this charge the defendant duly excepted. At the request of the solicitor the court gave the following written charges: (1) "The court charges the jury that if they believe from the evidence beyond a reasonable doubt that the defendant killed Jerre Perdue with a deadly weapon, it is presumed to be murder, and it devolves upon the defendant to reasonably satisfy the minds of the jury by evidence that he is guilty of a less crime, or acted in self-defense." (2) "The court further charges the jury that the expressions that, unless the evidence against the defendant should be such as to exclude to a moral certainty every hypothesis but that of his guilt of the offense imputed to him, they must find him not guilty. That the evidence of the state should be so convincing as to leave the mind of the jury to the conclusion that the accused cannot be guiltless are but strong expressions of that full measure of proof which the law exacts before it will sanction a conviction of a criminal offense, all of which only means that the jury must be convinced beyond a reasonable doubt." (3) "The court further charges the jury that the doubt which requires an acquittal must be actual and substantial, not mere possibility or speculation. It is not a mere possible doubt, because everything relating to human affairs and depending upon moral evidence is open to some possible or imaginary doubt." To the giving of each of these charges defendant separately excepted, and also separately excepted to the refusal of the court to give the following written charges asked by him: (1) "If the jury have no reasonable doubt that defendant took the life of deceased, and they are in doubt whether the act done was a deliberate, premeditated act, or the result of heat of blood, excited by an attack made or threatened by deceased, their finding must be for manslaughter in the first degree." (2) "The jury are instructed that manslaughter in the first degree is the voluntary depriving a human being of life." (3) "The plea of not guilty puts in issue every constituent of the crime of homicide, and, although the jury may not know or be satisfied beyond a reasonable doubt how the death of the deceased was brought about, yet if they are not satisfied beyond such doubt that defendant did the act with premeditation, then they cannot convict him of either degree of murder." (4) "In criminal prosecution, the weight and sufficiency of the evidence are for the jury. The guilt of the accused should be fully proved. It is not enough that the weight of the evidence points to his guilt. It must do more. It must point to his guilt with such force and certainty as to exclude every reasonable supposition of innocence. Circumstances may point to a party accused, may create suspicion of his guilt, and there may be no explanation of them; still they may fall far short of producing that satisfied conviction which leaves on the mind no reasonable doubt. The burden is on the state to prove the guilt of the accused, and is not necessarily on the defendant to explain suspicions. Circumstances, suspicion, without more, is not enough. Conviction-conviction beyond a reasonable doubt-is what the law requires." (5) "The jury are instructed that, if there is an absence of all evidence of an inducing cause to guilt,-that is, a motive,-it affords a strong presumption of innocence." (6) "The jury are instructed that the supposition of guilt should flow naturally from the facts proven, and be consistent with them all. They should make an examination of all the facts of the case, free from bias or prejudice; and an examination of the case on both sides, in its aspects of favor or disfavor. They should avoid precipitancy or haste in drawing their inferences, and resist any tendency to jump at conclusions, without examining all the facts of the case, and allowing them every interpretation which they will reasonably admit. The process of coming to a conclusion is to be a natural one without the use of any mental violence in straining facts beyond their real significance. If any of the facts or circumstances established by the evidence be absolutely inconsistent with the supposition of guilt, the jury must acquit." (7) "The defendant cannot be convicted of the higher degree charged in the indictment unless the jury are convinced beyond a reasonable doubt that the defendant took the life of the deceased intentionally, and with premeditation and deliberation; and if the jury are satisfied beyond a reasonable doubt that deceased came to his death at the hands of defendant, and they are in doubt whether the death was occasioned by the deliberate act of defendant, or that it was done accidentally, they must acquit."

Gardner & Wiley, for appellants.

Wm. L. Martin, Atty. Gen., for the State.

COLEMAN J.

The defendant was arraigned upon an indictment for murder, to which he pleaded, "Not guilty." Afterwards, but before the day fixed for his trial, he filed a plea to the effect that the special venire was drawn from 15 different boxes, and not "a single box," as required by law. The proper way to reach a venire not drawn in accordance with law is by a motion to quash the venire There was no ruling of the court upon this plea, and the record fails to show that the attention of the court was called to it. Pretermitting the fact that there is no ruling to which an exception was taken or legal question is reserved upon this point, (Ex parte Knight, 61 Ala. 486,) we are of opinion the venire was properly drawn. Section 4 of the act of 1886-87, p. 151, which provides that jurors shall be drawn from a box, was amended by the act of 1888-89, p. 430, so far as it applied to Pike county. By the latter act it is provided that the names of the persons from whom the jurors are to be drawn shall be placed in fifteen boxes,-one box for each precinct in the county. The fifteen...