Linehan v. State

• Decision Date: 04 February 1897
• Citation: 113 Ala. 70,21 So. 497
• Parties: LINEHAN v. STATE.
• Court: Alabama Supreme Court

21 So. 497

113 Ala. 70

LINEHAN v. STATE.

Supreme Court of Alabama

February 4, 1897

Appeal from circuit court, Walker county; James J. Banks, Judge.

John Linehan was convicted of murder, and appeals. Reversed.

The defendant filed the following plea in abatement: "Comes the defendant and pleads to the said indictment and says that the persons composing the said grand jury which returned said indictment were not drawn as required by law, for that the said jury commission of Walker county, Ala., drew from the jury box over twenty-five names, and from the names as drawn selected the persons who composed said grand jury, without regard to the order in which their names had been drawn from the jury box, and placed on said grand jury persons whose names had been drawn after they had drawn twenty-one names from said jury box. This he is ready to verify, wherefore he prays judgment that the said indictment be abated." The state, by its solicitor, demurred to this plea upon the following grounds: (1) That said plea does not aver that the grand jurors composing said grand jury were not drawn in the presence of the officers designated by law. (2) That said plea avers that the said grand jury which returned said indictment were not drawn as required by law, without averring that said grand jurors were not drawn in the presence of the officers designated by law. (3) That from all that appears in said plea, said grand jury was drawn as required by law. (4) That said plea does not show that the said grand jury were not drawn from the jury box in the manner required by law. This demurrer was overruled, and the defendant duly excepted. The facts as to the arraignment of the defendant, the organization of the petit jury, and the summoning of the special venire, and service thereof on the defendant, are sufficiently stated in the opinion.

The defendant moved the court to quash the venire for the trial of this cause, upon the following grounds: "(1) The copy of the venire on the defendant contains the names of S. B Cox and G. W. Hogg and their occupation is not shown on said copy. (2) Because the venire of special jurors, a copy of which was served on this defendant, was drawn long before this case was set down for trial on this day. (3) Because the case was set down for trial at a former day of this term of the court, and the list of special jurors served on this defendant for the trial of this cause to-day, together with the list of regular jurors drawn and summoned for this week constituted the venire for the trial of this cause at said former day, and the panel of the regular jurors organized for this week has been quashed. (4) Because there has been no order of the presiding judge setting this case for trial to-day. (5) Because there has been no order for a copy of the indictment and of the venire for the trial of this cause to be served on the defendant since the panel of the regular juries organized for the week has been quashed. (6) Because the sheriff has not served on the defendant for the trial of this cause on this day, either a list of the persons drawn and summoned to serve as petit jurors for this week of this term of the court, nor a list of the persons composing the regular petit juries organized for this week. (7) Because the sheriff served on the defendant for the trial of this cause a copy of the list of special jurors drawn to try this cause and a copy of the venire summoned by the sheriff of said county by order of the court under section 4327 of the Code for the third week of the present term of the court, as a copy of the venire from which the jury to try this case shall be selected. (8) Because the list of jurors served on this defendant contains the names of thirty-five persons who constitute the panel of the petit juries organized for this week of this term of the court. (9) Because petit juries were returned to serve during this week of this term of the court and regular petit juries were organized to serve during this week of this term of the court, and the panel of said petit juries has on motion of this defendant been quashed. (10) Because the sheriff served on this defendant as a copy of the venire from which the jury to try this case shall be selected, a list of persons summoned by the sheriff from the qualified citizens of Walker county and organized as the venire for this week, the regular panel drawn by the jury commissioners of Walker county for this week having been quashed. (11) Because the presiding judge directed the sheriff whom to summon to serve as the regular jurors for the trial of this cause. (12) Because the presiding judge on this day ordered the sheriff to summon certain persons to serve on the regular jury as the circuit clerk called the names from a list of names held by the clerk, and the sheriff did so summon said persons, the said persons being the ones served on this defendant as the venire for the third week. (13) Because the copy of the venire served on the defendant from which the jury to try this cause shall be selected shows neither the beat nor the occupation of the persons named in said venire. (14) Because the persons served on this defendant as constituting the venire for this week, were summoned as jurors on this day." The facts upon which this motion was based, pertain to the summoning of the special venire, and the summoning and organization of the jurors for the week, and the service of the venire and indictment upon the defendant, all of which, as stated above are set forth in the opinion. This motion was overruled, and the defendant duly excepted.

The evidence for the state tended to show that the homicide occurred in the following manner: One George Fram was to have a trial before the mayor of Carbon Hill, of which town Oakley, the deceased, was marshal. The cause against Fram was continued, and upon the defendant asking Oakley why it had been continued, Oakley replied that he was running the court, and thereupon a quarrel ensued. The defendant started up the street from where the quarrel was had, and cursed Oakley. Thereupon Oakley told the defendant he must not curse him, and upon the defendant using a very opprobrious epithet towards him, the deceased walked towards the defendant, and when within about 8 or 10 feet of him, the defendant turned and shot at Oakley. Oakley turned around and started in the opposite direction, and the defendant then shot him in the back, from the effects of which wound Oakley staggered and fell; the second shot being the shot that killed him. The state's testimony further tended to show that just after the deceased was shot, the defendant gave himself up, and said to the person to whom he surrendered, that he shot Oakley as he turned to run, "and that if he had not killed him he would go back and finish him." The evidence for the defendant tended to show that upon deceased being asked why the trial of Fram was continued, he became enraged and pushed the defendant away from him; that as the defendant walked up the street, he cursed the deceased, whereupon the deceased started after him, and ran his right hand to his right hip pocket, and was pulling and jerking at something in his pocket when the defendant shot; that as Oakley turned his left side to the defendant, he was still trying to pull something out of his pocket, whereupon the defendant fired the second shot. There was testimony for the defendant that immediately after the shooting Oakley was examined, and a pistol was found in his right hip pocket. During the examination of George Fain as a witness for the defendant, he testified, among other things, that he had taken a few drinks before the killing, but was not drunk at that time, nor was he drunk a half hour later, when he went home with J. A. Johnson. The state, in rebuttal, introduced J. A. Johnson as a witness, who, after stating that he knew Fain and saw him at the homicide, was asked by the solicitor: "What was Fain's condition a half hour after the killing?" The defendant objected to this question, on the ground that it was irrelevant and immaterial. The court overruled the objection, and the defendant duly excepted. The witness answered that a half hour after the shooting Fain was very drunk. The defendant moved to exclude this answer of the witness from the jury, and duly excepted to the court's overruling his motion. While examining the witness James Woodman, offered by the defendant, the solicitor in his cross-examination questioned the witness about how fast Oakley was walking when he was advancing on the defendant. The solicitor got between the witness and jury and walked across the floor and asked the witness if Oakley walked as fast as he was walking then. The defendant objected to the solicitor walking to enable witness to testify upon Oakley's speed. The court overruled the objection and the defendant then and there duly excepted. The facts pertaining to the other rulings upon the evidence, to which exceptions were reserved, are sufficiently stated in the opinion.

Upon the introduction of all the evidence, the defendant requested the court to give the following written charges, and separately excepted to the court's refusal to give each of them as asked: (2) "The necessity to take life need not be actual. If the circumstances are such as to create a reasonable belief that it is necessary to take the life of another to preserve one's own life or his person from great bodily harm, the law attaches no blame." (11) "The principle on which mutual combat extenuates homicide is, that the blood is heated by the fight, which concurring with the instinct of self-preservation, silences the voice of reason." (26) "If the defendant fired the fatal shot when there was present a pressing necessity to shoot in order to save the...