King v. State

• Decision Date: 28 April 1890
• Citation: 7 So. 750,89 Ala. 146
• Parties: KING v. STATE.
• Court: Alabama Supreme Court

7 So. 750

89 Ala. 146

KING v. STATE.

Supreme Court of Alabama

April 28, 1890

Appeal from city court of Mobile; O. J. SEMMES, Judge.

The defendant in this case, Tom King, was indicted for the murder of Thomas Popham by shooting him with a pistol, was tried and convicted of manslaughter in the first degree, and sentenced to the penitentiary for a term of five years. During the organization of the jury for the trial, the name of E. R. Quattlebaum was drawn; and, upon being duly sworn he was asked if he had a fixed opinion which would bias his verdict, to which he answered: "Qualifiedly, I have that is, as to the killing. I am satisfied as to that." He was then asked, "Is your opinion such that it would bias your verdict?" and he answered: "I think the evidence would have to be very strong to change my opinion. I heard the previous evidence in the case, and I think it would be a pretty hard matter to set aside the evidence I based my opinion on. As to the classification of the killing, of course, my opinion is not made up." The juror being then challenged for cause by the defendant, his examination was further continued by the court, by question and answer, as follows: "Question. If the evidence is different from what you have heard as to the killing, would the opinion you now have in any way bias your verdict, or could you lay aside the opinion you now have, and try the case fairly and impartially upon the evidence alone, without the opinion you now have having any influence whatever upon your verdict; or would the opinion you now have in any way influence your verdict, in one way or the other? Answer. Well, I think it would not. I think I would be impartial enough to render a verdict according to the positive evidence in the case. The only thing I could not certify to would be that I would be unprejudiced as the case now stands. Q. Would that prejudice influence you? A. As far as it goes, I think I would be perfectly free to set aside any preconceived idea I have in regard to it, with sufficient evidence to override that present conviction. Q. Suppose the evidence is not such as you have heard, and there should be any conflict in the evidence as between what you have heard and what was sworn here, and it had fallen short simply of what you had heard then would what you have heard lead you to make up any gap in the evidence? A. No, sir; I think I could give a verdict. I am not prejudiced at all in the case, and would be perfectly free to set aside any evidence that I have previously heard with evidence,-unquestionable evidence. Q. Suppose a witness got on the stand who was to testify to a fact which was different from the fact as you had heard it, and suppose the state should put upon the stand a witness to impeach that witness, and to show that he was not worthy of belief. Would you allow what you now know to have any influence as to whether the witness had been impeached? A. I would not. Q. You would try it upon the evidence, without reference to what you know? A. I would." The court then held the juror competent, and overruled the challenge for cause, to which ruling the defendant excepted, and challenged the juror peremptorily.

It was shown on the trial that the killing occurred on Sunday night March 17, 1889, in a small yard in the rear of an engine-house, No. 8 where a party of 12 or 15 persons were gambling,-"shooting dice for money." The game was played on a small, three-legged table, which was propped up against a tree, and was lighted by a lamp suspended from one of the limbs of the tree. The defendant, King, Walcott, his brother-in-law, Ed Russell, and others were playing, when Popham came in, and joined in the game, being at the time under the influence of whisky; and he bet only small sums until he lost about 60 cents. During the further progress of the game, $30 were at one time on the table, of which $5 belonged to King and $15 to Russell; and, occasional gusts of wind blowing, which moved or blew the money, Popham laid his hand on it. King at once called out that he withdrew his bet, saying, "My bet is off," or words to that effect. Popham then said to him, "Do you mean to say...