King v. State

• Decision Date: 30 January 1891
• Parties: KING v. STATE.
• Court: Alabama Supreme Court

8 So. 856

90 Ala. 612

KING v. STATE.

Supreme Court of Alabama

January 30, 1891

Appeal from circuit court, Colbert county; H. C. SPEAKE, Judge.

The indictment in this case which was found in September, 1888 contained but a single count, and charged that "Ross King, Josiah King, George Kelly, and Henry King unlawfully and with malice aforethought, killed John Lilly, by striking him with a piece of iron, or by striking him with rocks." Ross King, being on trial alone, pleaded not guilty, was convicted of murder in the second degree, and sentenced to the penitentiary for the term of 40 years. On the trial, as is shown by the bill of exceptions, the evidence showed that the homicide was committed one evening about sunset or later, in the town of Leighton, just in front of the deceased's store or shop, where he sold whisky and other things; that quite a crowd of persons were present composed of white men and negroes, all of whom were drinking; that the deceased, who was drunk, came to the door, and boasted that he "was the best man in town," to which the defendant made some reply; that they thereupon engaged in a friendly scuffle, and both fell to the ground, the defendant on top; that a by-stander pulled him off, and told them they had better quit before they got into a fuss, but each of them said he was not angry; that the deceased, as he arose, cut or struck at the defendant with a knife, but the defendant ran and dodged around the corner of the house; that the crowd then began throwing stones, one of which struck the deceased, who then turned towards the crowd, just as the defendant came from around the corner of the house, and started towards him; that a stone struck the deceased, and felled him to the ground; that defendant then struck him once or twice with a piece of iron he had picked up; that the skull of the deceased was fractured, and he died within an hour. The defendant then requested the following charges in writing, and duly excepted to their refusal, as asked: (1) "The jury can take into consideration that the defendant was drunk, if the evidence shows that he was drunk, by way of explaining his conduct on the hypothesis of the provocation, rather than of malice, because a man's passions are more easily excited when he is drunk than when he is sober." (2) "Drunkenness does not palliate crime, but it may be received in evidence to repel the existence of premeditation, deliberation, and malice necessary to constitute murder in the first degree." (3) "Intoxication may render the accused incapable of forming or entertaining the specific intent which is a material ingredient of the crime of murder." (4) "Voluntary drunkenness may sometimes operate to rebut the existence of malice, so as to reduce the grade of homicide, or other crime of which malice is a necessary ingredient." (5) "A man may, in many instances, be so drunk as to be incapable of forming or entertaining any specific intention at all." (6) "Whether the defendant, at the time of the homicide, was so drunk as to be incapable of forming an intent, is a conclusion to be drawn by the jury from all the evidence before them." The other exceptions reserved by the defendant are sufficiently shown in the opinion.

Jackson & Sawtelle, for appellant.

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

CLOPTON J.

Garland whose name appears on the special venire, having been drawn, claimed exemption from jury duty under section 174 of the Code; and, after being sworn and examined, was excused and discharged, against the objection of appellant, upon his own statement that he was a member of the Sheffield Light Guards, and belonged to the Alabama state troops. The section declares: "Every officer, commissioned or non-commissioned, musician, and private of the Alabama state troops is exempt from jury duty during his membership; and the commanding officer of each company shall furnish each member with a certificate of membership, signed by such commanding officer, which shall prove such exemption in any court; but such certificate shall be revoked when the holder is absent from four successive drills or parades without good excuse." It is not controverted that Garland was entitled to the exemption, and that the court was without power to compel him to serve as a juror, if shown by competent and sufficient proof that he was a member of the state troops. The exception goes to the sufficiency of his own statement to prove that he comes within the exemption. The contention is that, under the statute, the only evidence competent and sufficient for this purpose is the certificate of the commanding officer. The statute confers the right or privilege of exemption on the ground of membership, and during the membership, in consideration that a member of the state troops owes duties to the public which he may, at any moment, and in a sudden emergency, be called upon to discharge. The privilege does not depend upon obtaining the certificate of the commanding officer, but upon the fact of membership. Should the commanding officer willfully refuse or negligently fail to furnish such certificate, the member is not thereby deprived of his right to the exemption. The question whether a person drawn as a juror comes within the exemption is for the determination of the court, and in its ascertainment the ordinary practice is to examine the person claiming the exemption on his voir dire, and to receive his own statement as prima facie evidence, which, if not controverted, is usually regarded sufficient to justify his excuse and discharge. The statute contains no words of negation, and it cannot be implied from the terms of the provision itself, requiring the commanding officer to furnish each member with...