Knight v. State

• Court: Supreme Court of Alabama
• Citation: 49 So. 764,160 Ala. 58
• Parties: KNIGHT v. STATE.
• Decision Date: 13 May 1909

49 So. 764

160 Ala. 58

KNIGHT v. STATE.

Supreme Court of Alabama

May 13, 1909

Appeal from Clay County Court; W. J. Pearce, Judge.

Jay C Knight was convicted of murder in the second degree, and he appeals. Reversed and remanded.

The question propounded to the witness Adair was as follows "Do you remember hearing Jay, some two or three days before the difficulty over here at Carwisle's store, or in Alexander's store, make any threat?" and the answer: "I heard him make some threats, but don't remember about the time. I couldn't say positively whether it was just a few days before the difficulty or not"--and the following question: "State to the jury what you heard him say," and the answer, "I think he made the remark that he would get him a damn man before he was 21 years old."

The following charges were refused to the defendant: (H) "I charge you that, if you believe from the evidence in this case that either Robert Mellon, Will Green, or Will Alexander have been successfully contradicted as to any material evidence, the jury may, in connection with all the other evidence, disbelieve such witnesses so contradicted entirely." (J) "I charge you that you may look to the testimony of Watts and Shiry, if you believe it, that the lantern was in the surrey, in connection with all the evidence in the case, in determining what credence you will give to the testimony of Alexander, Mellon, and Green." (G) "I charge you that, if you believe from the evidence that Will Alexander, Robert Mellon, and Will Green have been successfully contradicted as to the place the lantern was at at the time of the difficulty, you may, in connection with all the other evidence, disbelieve such witnesses entirely." (13) "I charge you that defendant is not on trial for carrying a concealed pistol, and this fact or circumstance cannot be weighed in this case against him." (14) "If the jury believe the evidence that the defendant was rightfully upon the place where the difficulty occurred, and was attacked by Will Mackey while there, then the defendant was authorized by law to repel force by force, and to protect himself against any assault which he did not himself bring about."

The court gave the following charge at the instance of the state (J) "The court charges the jury that a reasonable doubt 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."

Whatley & Cornelius, for appellant.

Alexander M. Garber, Atty. Gen., and Thomas W. Martin, Asst. Atty Gen., for the State.

DENSON J.

A mistake occurred in the names of two of the veniremen, and on motion of the defendant they were discarded, and two jurors were summoned, in accordance with section 7267 of the Code of 1907, and their names placed in the hat, with the names of the other jurors, in substitution for the two discarded. Section 7268 of the Code provides that a defendant may peremptorily challenge such substituted jurors, "in addition to the other peremptory challenges allowed him by law." After the defendant had peremptorily challenged 21 jurors, including one of the two (Mr. Robertson) who were substituted for those discarded, W. P. Hanson qualified, and was put upon the defendant. In this connection, the bill of exceptions contains the following recitals: "Counsel for defendant stated to the court that he thought defendant was entitled to another challenge. The court asked counsel on what ground he thought defendant was entitled to one more challenge, and said counsel failed or refused to state any ground, and the court stated: 'If you refuse to state the ground, the court can't allow another challenge.' Hanson was then challenged by the defendant, telling the court at the judge's desk, in a low tone, that he challenged said juror; but the court refused said peremptory challenge and directed the juror to take a seat as a juror and to this action of the court defendant then and there reserved an exception. Counsel for defendant did not call the court's attention to section 7268 of the Code of 1907, or in any way give any reason why defendant was entitled to another challenge." While it was the statutory right of the defendant to challenge the juror (Smith's Case, 46 So. 236), yet this court is of the opinion that, under the facts disclosed by the bill of exceptions, the conduct of defendant's counsel towards the court, in respect to the matter at issue, estops the defendant from insisting that the ruling of the court was reversible error. It is the duty of an attorney, in the trial of causes, to aid the court, to the end that error in the course of the trial may be avoided, and, when called upon by the court, to state the ground upon which a contention is rested or a ruling is invoked. The duty rests upon the attorney to comply with the request and to give the court the benefit of the information he possesses; and failing, or "refusing," so to do, no duty rests upon the court to cast about to ascertain the grounds upon which the ruling is invoked, and it may overrule the objection or motion without committing reversible error. Wallis v. Rhea & Ross, 10 Ala. 453; Sanders v. Knox, 57 Ala. 80. It is true that, in the cases cited, the question arose on the admissibility of testimony; but the principle upon which the rulings were made in those cases is applicable here. It is no answer to this proposition to say that the court was familiar with the statute giving the right of challenge. This may be true, but can it be presumed that the court knew or remembered that Robertson, who had been peremptorily challenged, was one of the jurors in substitution of another whose...