Johnston v. State

• Citation: 10 So. 667,94 Ala. 35
• Parties: JOHNSTON v. STATE.
• Decision Date: 28 January 1892
• Court: Alabama Supreme Court

10 So. 667

94 Ala. 35

JOHNSTON v. STATE.

Supreme Court of Alabama

January 28, 1892

Appeal from circuit court, Cherokee county; JOHN B. TALLY, Judge.

Robert W. Johnston was indicted for murder in the first degree, and from a conviction of manslaughter appeals. Modified.

On the call of the case in the lower court, the defendant moved to quash the venire, on the ground that he had not been individually served with a copy of the indictment and a list of the jurors summoned as a special venire to try his case, but that the said copy of the indictment and venire was served on his attorney, although he, the defendant, was in jail at the time. The court overruled this motion to quash, and the defendant duly excepted. The evidence for the state tended to show that, while the defendant was cleaning and oiling his pistol, he pointed and snapped it at his little children and his wife, without knowing that it was loaded; and the pistol went off, and the ball struck the said Margaret Johnston, defendant's wife which wound resulted in her death. Against the objection and exception of defendant, the court allowed the state to prove that the defendant had told a witness "that he had had dealings with a woman by the name of Snow fifty times, he reckoned." The state introduced as witness one Pollard who testified that one night when the defendant was passing his house with some prisoners his wife asked him when he would be back, to which he replied, "It is none of your G______ d______d business." On the cross-examination of one Young as a witness, the defendant asked said witness that, if said Pollard did testify as above set forth "if he was not mistaken in that statement." The court sustained the state's objection to this question and the defendant duly excepted. The bill of exceptions then recites: "Defendant's counsel stated to the court that the supreme court of this state had decided that such questions were admissible, to which the court replied, 'Let them decide it again.' To this remark of the court the defendant then and there duly excepted. The court withdrew said remark." There was evidence introduced as to the general good character of the defendant, and also that he and his wife, whom he killed, were upon very good terms, and always seemed to treat each other well and considerately. The court gave its general charge to the jury in writing. The defendant separately excepted to the following portion of the said charge as given: "If the defendant pointed the pistol at his child, believing it was not loaded, and snapped it, and the pistol went off and killed Margaret Johnston, and this occurred in this county some time last January or February, he would be guilty of manslaughter in the second degree." The defendant also separately excepted to that part of the general charge which was as follows: "If this [the shooting of Mrs. Johnston] was done while snapping the pistol at his child, it was unlawful." And the defendant also separately excepted to the expression in the general charge that "if, by accident, Mrs. Johnston was in range, and was shot and killed." the defendant also separately excepted to the refusal of the court to give the following written charges requested by him: (1) "Unless the jury find from all the testimony that the defendant intentionally pointed the pistol at his wife when he shot her, then the jury must find the defendant not guilty." (2) "That if the jury believe from the evidence that defendant is shown to be a man of good character, then that itself may generate a doubt, although none otherwise exists." (3) "Unless the jury believe from all the evidence that the defendant pointed the pistol at his wife intentionally, then they cannot find him guilty."

J. L. Burnett, for appellant.

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

COLEMAN J.

It is argued that the court at which the defendant was tried was held at a time not authorized by law. The court began on the 2d Monday of July, 1891. The act fixing the time when the courts composing the ninth judicial circuit should be held declares as follows: "(1) In the county of Cherokee on the second Monday in January and July, and at each term may continue three weeks." After fixing the time for each county, the act provides "that this act shall not take effect until after the spring terms of said courts are held for the year 1891. Approved February 14, 1891." When this act was approved the courts were then being held in the ninth judicial circuit, under the law in force as fixed by the Code, and by virtue of its provisions the last court held in this circuit began on the ninth Mondays after the fourth Mondays in January and July, and might continue for four weeks. Code, § 749. The last court to be held in this circuit under the law as fixed by the Code, and then in force, would expire some time in April following the adoption of the act of February 14, 1891. It was the purpose of the legislature that these terms should not be interfered with or affected by the new order or arrangements, and to accomplish this result it was provided that the later act should not take effect until after those terms had been completed. We think there is nothing in this objection.

Under section 4449 of the Code, it is sufficient to serve a copy of the indictment and venire upon the defendant in person or counsel appearing for him. Reese v. State, 90 Ala. 626, 8 South. Rep. 818. The name of John A. Kennedy was drawn from the hat as a juror in the case. The record shows that John A. Kennedy had been summoned as a regular juror for the week, but did not attend, and the regular jury had been impaneled without him. His name was on the venire, a copy of which had been served upon the defendant's counsel. The rule requires that, when the day fixed for the trial of one charged with a capital offense is a day of the week in which the order setting a day for the trial is made, the copy served upon the defendants shall include the names of those in attendance and impaneled as regular jurors for the week; but, when the day fixed for the trial is a day of a week succeeding the week in which the order is made, the list of jurors to be served upon the defendant must include the names of the jurors summoned to serve as regular jurors for that week. Shelton v State, 73 Ala. 5; Posey v. State, Id. 490; Floyd v. State, 55 Ala. 61. The juror Kennedy failing to answer, the court, against the objection of the defendant, ordered the drawing from the hat to proceed. The defendant at the trial assigned no grounds for his objection, and now insists that the court should have ordered another juror summoned to supply his...