Laws v. State

• Decision Date: 07 June 1905
• Parties: LAWS v. STATE.
• Court: Alabama Supreme Court

42 So. 40

144 Ala. 118

LAWS v. STATE.

Supreme Court of Alabama

June 7, 1905

Appeal from Criminal Court, Jefferson County; D. A. Greene, Judge.

"To be officially reported."

Dave Laws was convicted of manslaughter in the first degree, and he appeals. Affirmed.

After two postponements, the defendant on the trial set up a plea in abatement to the effect that he was not represented by counsel on his arraignment, when he pleaded not guilty, and that his name was Dave Law, and not Dave Laws. On motion, the court struck this plea.

On the trial, the evidence for the state was to the effect that the deceased and one Kennedy had been playing pool in the pool and barroom of the defendant for drinks; that the deceased losing the game, went with Kennedy to the bar, and ordered drinks; the defendant appeared, when deceased said to him "Dave you are not in on this drink"; that thereupon defendant cursed the deceased, who struck him with his open hand; that defendant went behind the bar, secured a pistol and immediately shot deceased, striking him in the arm, and as deceased fell, shot him again in the back, which last shot caused his death. This was brought out by declarations made by the deceased, immediately after he was shot, and after he expressed the opinion that he was dying.

The evidence for the defendant was the same, up to the point where it was said that the deceased struck the defendant. Defendant's witnesses testified further that, before the shooting, deceased struck defendant with a beer glass, and was threatening to strike again with it, when defendant fired. There was also testimony to the effect that at the time the defendant was very drunk. As the opinion states no proposition of law based upon the many and various objections to the evidence, it is not deemed necessary to set them out. The defendant requested several written charges to the effect that if at the time of the killing he was so drunk that he could not be in law held responsible for his act, he must be acquitted. Also, other charges, numbered and as follows: "(1) If the jury believe from the evidence that the deceased was striking at the defendant with an open knife, and defendant shot to save his own life, then they must acquit the defendant." "(3) If from all the evidence, the jury have a reasonable doubt as to whether or not the defendant acted in self-defense, or otherwise, they must give the benefit of the doubt to this defendant and acquit him."

Stallings & Nesmith and B. M. Allen, for appellant.

Massey Wilson, Atty. Gen., for the State.

ANDERSON J.

The record shows that the special venire in this case was drawn by "the judge of this court" and while the statute requires it to be done by the "presiding judge," we think that the presiding judge and the judge of the court were but one and the same. The point decided in the case of Scott v. State (Ala.) 37 So. 366, has no application, as it was held in that case that the court and the presiding judge did not mean the same. It is true that there are two judges of the criminal court of Jefferson county, but we must presume that the judge of the court as recited in the minute entry was the judge presiding at the time the venire was drawn and was the judge that drew the same. We cannot accept the contention of counsel that the statute contemplates that the venire must be drawn by the judge who presides at the trial of the case. It means that the venire must be drawn by the judge presiding when the same is drawn and we think the "judge of the court" means the judge presiding over the court when the venire was drawn. We do not think that the statute requires the venire to be drawn by the judge who tries the case. Under the Constitution circuit judges can hold courts for each other. One may preside the week the case is set and the venire is drawn, and another may preside the next week and try the case, and we cannot believe that the statute prohibits such an exchange upon the theory that the...