Lide v. State

Decision Date17 April 1902
Citation133 Ala. 43,31 So. 953
PartiesLIDE v. STATE.
CourtAlabama Supreme Court

Appeal from city court of Montgomery; A. D. Sayre, Judge.

Sam Lide was convicted of murder, and he appeals. Affirmed.

The appellant, Sam Lide, was indicted and tried for the murder of A. B. Johnson, was convicted of murder in the first degree and sentenced to the penitentiary for life. On the 19th day of March, after the regular grand jury organized for the February term of the Montgomery city court had been discharged, the court made an order, reciting that it had been made to appear that during the then February term of the court, and since the regularly organized grand jury had been discharged, A. B. Johnson had been feloniously killed in Montgomery county, and an immediate investigation of the same was proper and necessary, and directing the sheriff to summon "18 persons possessing the requisite qualifications of grand jurors," to attend that term of the court for the purpose of investigating said killing. The clerk thereupon on that day, certified and delivered to the sheriff a copy of said order. No jury was drawn by the judge. No order was made by the judge of the city court directing the probate judge to exhibit any list of jurors filed in his office to the sheriff, and, without consulting any list prepared by the jury commissioners or otherwise, the sheriff, in obedience to order set forth above, selected from the general body of the citizens of the county 18 persons, whom he summoned to appear on March 26th. On the last-named date 17 of these persons so summoned were organized into a grand jury, and on the same day preferred the alleged indictment against the defendant on which he was tried and convicted, charging him with murdering said Johnson, and such jury was then on that day discharged. The defendant filed a motion to quash the indictment, assigning several grounds therefor. He also filed a plea in abatement, raising the same question. The many grounds of the motion to quash and the many averments in the plea in abatement assert, in substance, only two propositions: (1) "The city court of Montgomery is without power to summon a special grand jury to investigate an offense committed during the term of the court and after the discharge of the grand jury regularly organized for the term; in other words, section 5000 of the Code has no application to the city court of Montgomery." (2) "Even if the court had the power to direct the summoning of such grand jury, it was not summoned and selected in the way required by statutes governing the summoning and selecting of grand juries in Montgomery county." The motion to quash was overruled, and the defendant duly excepted. The state demurred to the plea in abatement, and the court sustained this demurrer, to which ruling the defendant duly excepted. The defendant made an application for a change of venue, and in his petition averred the facts relating to the organization of a special grand jury, and also set out the statements made by his wife to him, showing that the deceased had criminally assaulted her, and then averred that T. J. Reynolds, the father of the wife of the defendant, and Oscar Johnson, the brother of the deceased had colluded together with other persons in procuring a statement from his wife to the fact that the deceased did not criminally assault her; that this statement had been printed in the daily papers published in Montgomery, which papers had a large circulation throughout the county; that other statements harmful and prejudicial to the defendant had been made in the papers, all of which had led a large number of people throughout the county to believe that the defendant was guilty of the crime of murder; and that, therefore, the defendant could not have a fair and impartial trial in the county of Montgomery. There were affidavits introduced by the defendant in support of this application, and counter affidavits introduced by the state. This application for a change of venue was denied. The defendant pleaded "not guilty," and "not guilty by reason of insanity."

It was shown by the evidence, without conflict, that A. B. Johnson was killed by defendant; that the killing occurred on Friday morning in the store of the defendant; that Johnson and the defendant had met and spoken to each other some time before Johnson came into the defendant's store; that after this meeting, at which there were no demonstrations made on the part of either, Johnson walked to the store of the defendant and after having entered the door, and while about halfway the store, the defendant picked up his shotgun, which was loaded with buckshot, and fired upon Johnson, killing him and that after having fired the fatal shot the defendant locked his store door, leaving the body of Johnson on the floor, and in company with his father-in-law, one T. J. Reynolds, proceeded to the city of Montgomery, where he surrendered himself. There was evidence on the part of the state that the defendant had deliberatelyand premeditatedly determined upon killing said A. B. Johnson, and had prepared himself to do so; that he had made inquiries as to what would be the result of his killing a man, and what was the "best way to shoot a man that you were trying to kill." There was evidence introduced by the defendant tending to show that on Sunday night before the killing Johnson had criminally assaulted and attempted to ravish the wife of the defendant; the defendant, as a witness in his own behalf, testifying that his wife told him that while the defendant was away from home Sunday afternoon she went to the store of the defendant for the purpose of getting some flour, and while she was there the said Johnson came into the store, pushed the door to, and while in there criminally assaulted her; that this disclosure and these statements were made by the defendant's wife to him on Monday, and that he did not see Johnson from that time until Friday morning, a short time before the homicide. The defendant further testified that as soon as he was told by his wife of the criminal assault upon her he went at once to the home of his wife's father, T. J. Reynolds, and after a conference his wife's father came back to his house with him, and his wife reiterated the statements to her father. T. J. Reynolds was introduced as a witness for the state, and, among other things, testified that on the Monday night before the killing the defendant came to his house, and stated that his wife had told him that Johnson had criminally assaulted her, and that he wanted the witness to go with him and talk over the matter with his wife; that, in compliance with the request of the defendant, he went to his house, and asked the defendant's wife if what the defendant had told him was true; that the defendant's wife answered that it was not true, but that the defendant had forced and compelled her to make that statement to him; that Johnson had never treated her otherwise than as a lady; that when she made the statement to the defendant she told him at the time that it was not true. There was other evidence introduced on the part of the state tending to show that such statements were made by the defendant's wife because of threats made by the defendant against her, and by reason of his coercion and compulsion. There was some evidence introduced on the part of the state tending to show that the defendant entertained animosity against the deceased for a year or more before the homicide. There was evidence introduced on the part of the defendant tending to show that immediately after the killing, and during the defendant's incarceration, there were symptoms of insanity on the part of the defendant; that he was in a highly nervous condition, very excited, and acted strangely at times. It is, however, unnecessary to set out this evidence in detail. The defendant offered to introduce Mrs. M. E. Lide as a witness in his behalf. The state objected. The bill of exceptions then recites as follows: "Defendant's counsel stated--First, that the witness so offered was competent, and offered as a witness under the special plea in the case; and that, second, if not competent for all purposes under the plea, then she was competent and offered as a witness to testify in contradiction of the testimony of witnesses for the state in reference to statements made by her. The court sustained the objection, and refused to permit witness to testify for any purpose in the case, and the defendant then and there duly and legally excepted to the action of the court." J. W. Killen was introduced as a witness for the defendant, and, among other things, testified to a statement made by Dr. Oscar Johnson, the brother of the deceased, which tended to show a conspiracy between Johnson and others against the defendant in working up a case against him. Killen testified that at the time of making this statement one Tobe Jones was present. It appeared that Tobe Jones was a witness for the defendant, and was present at the trial and was sworn as a witness. The solicitor in his argument to the jury said: "Tobe Jones was here as a witness for the defendant. Why wasn't he introduced as a witness by the defendant to substantiate Mr. Killen's statement as to what Dr. Johnson said?"--tending to show that there was a conspiracy in the prosecution of the defendant. The defendant objected to this statement of the witness in his argument as being an improper comment. The court overruled the objection, and the defendant duly excepted. The solicitor during his argument to the jury, and while referring to the result if the defendant should be acquitted, stated that such acquittal would "allow another murderer go unwhipped of justice." The defendant objected to the use of these words by the solicitor in his...

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    • United States
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    ...of the evidence. Grissom v. State, 33 Ala.App. 23, 30 So.2d 19 (1947); Lee v. State, 246 Ala. 343, 20 So.2d 471 (1944); Lide v. State, 133 Ala. 43, 31 So. 953 (1901). In this respect, the burden never shifts to the State nor rests on the State. Grammer v. State, 239 Ala. 633, 196 So. 268 "I......
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