Huguley v. State

• Citation: 15 Ala.App. 189,72 So. 764
• Decision Date: 07 September 1916
• Docket Number: 5 Div. 197
• Parties: HUGULEY v. STATE.
• Court: Alabama Court of Appeals

72 So. 764

15 Ala.App. 189

HUGULEY v. STATE.

5 Div. 197

Court of Appeals of Alabama

September 7, 1916

Appeal from Circuit Court, Russell County; M. Sollie, Judge.

Cosco Huguley, alias Coscoe Huguley, was convicted of murder in the second degree, and he appeals. Affirmed.

The matters concerning which the opinion treats sufficiently appear therefrom. As a sample of the refused charges concerning the right of dwelling or curtilage, charge 3 is as follows:

(3) The court charges the jury that there is no evidence in this case which as a matter of law makes the defendant at fault in bringing on the difficulty.

(4) If the jury believe from the evidence that the defendant at the time of the killing, was near the front veranda of his store, where he was carrying on a mercantile business, and on the land belonging to said building and used by the defendant in connection therewith, and was within the curtilage thereof, and which was occupied by him as a place of business, and that he was there assailed by the deceased under circumstances such as to reasonably impress defendant with the belief that his assailant intended to inflict on him great bodily harm, and also that there was imminent danger that such injury would be inflicted upon defendant, then the defendant had the right to repel such assault by shooting deceased, and he must be acquitted, provided defendant did nothing to provoke the assault.

R.B Barnes, of Opelika, H.A. Ferrell, of Seale, E.H. Glenn, Jr. of Opelika, and A.A. Evans, of Montgomery, for appellant.

William L. Martin, Atty. Gen., and Harwell G. Davis, Asst. Atty. Gen., for the State.

PELHAM, P.J.

It is contended by counsel that the judgment entry fails to show that the box from which the names of the jurors to constitute the special venire were drawn was "shaken" before the names were drawn, and that it does not appear that the names were "publicly" drawn, as required by section 7263 of the Code of 1907. Under the provisions of the present jury law, no objection can be taken to any venire of jurors except for fraud in drawing or summoning the jurors. Acts 1909, p. 317, § 29. It has frequently been held that section 32 of the jury law, under the provisions of which the jury in the instant case was drawn, is mandatory in its requirements in capital cases as to the duties prescribed and benefits intended.

"But the defendant cannot justly complain of mere informalities which do not in any way affect the number, or personnel, or character of the veniremen provided for his selection of jurymen." Waldrop v. State, 185 Ala. 20, 24, 64 So. 80, 81.

We think the order of the court shows a compliance with the provisions of the statute in respect to drawing the special venire. It is stated in the order that the judge of the court ordered the jury box of the county to be brought into open court, and that he drew the names of the special jurors from the jury box in open court. There is no requirement in the present jury law that the jury box shall be "shaken," or that the names be "publicly" drawn, but that they be drawn in open court. This the judgment entry shows to have been done, and we think it affirmatively appears that the special jurors were drawn as required by law. Acts 1909, p. 305 et seq. But, however this may be, the defect of which the defendant complains is one which may be waived by the defendant failing to interpose timely and appropriate objection (Waldrop v. State, supra; Morton v. State, 69 So. 235), and the record in this case does not disclose that objection in any form was made to the action of the trial court in drawing the jury. See, also, Thomas v. State, 94 Ala. 74, 10 So. 432, where it is said:

"Parties must not be permitted to speculate on the chances of a favorable verdict, and, failing, then fall back on some preliminary, ministerial error, not previously called to the attention of the court."

The defendant, in requesting certain written charges, proceeded on the theory that the evidence without conflict showed that the defendant was within the curtilage of his place of business, and therefore under no duty to retreat. These charges assume the existence or nonexistence of a fact, and the trial court cannot be put in error for refusing an instruction which assumes the existence of a fact, even though the evidence is not in dispute. Campbell v. State, 69 So. 322.

"When a question of fact is involved, dependent on oral testimony, the credibility of the evidence must be referred to the jury; and a charge assuming the credibility of the testimony, is erroneous, though it is clear and undisputed." Davidson v. State, 63 Ala. 432; quoted approvingly by this court in Thomas v. Smoot, 2 Ala.App. 407, 409, 56 So. 1.

Likewise it is held that trial courts cannot be required to give charges that there is, or is not, evidence of particular facts. Troup v. State, 160 Ala. 125, 49 So. 332; New Connellsville Co. v. Kilgore, 162 Ala. 644, 50 So. 205; Jefferson v. State, 110 Ala. 89, 92, 20 So 434. Nor do we think the evidence justified ...