Linnehan v. State

• Decision Date: 13 January 1898
• Citation: 22 So. 662,116 Ala. 471
• Parties: LINNEHAN v. STATE.
• Court: Alabama Supreme Court

22 So. 662

116 Ala. 471

LINNEHAN v. STATE.

Supreme Court of Alabama

January 13, 1898

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

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

The indictment in this case charges the appellant, John Linnehan with murder in the first degree. At a former term of the circuit court the defendant was convicted of murder in the second degree, and from the judgment of conviction and on appeal to this court the judgment was reversed. There is nothing in the record on the present appeal showing these facts; but according to the present record the defendant when he was put upon his trial was charged with murder in the first degree. The record fails to show any order setting a day for the trial of the case, nor that there was a service upon the defendant or his attorney of a copy of the indictment and venire drawn for the trial of this case.

Upon the case being called for trial, and before entering upon the same, the defendant moved the court to quash the indictment upon the following grounds: "(1) Because the persons composing the grand jury which found the indictment were not drawn in the presence of the officers designated by law. (2) Because the persons who drew the persons composing the grand jury which found the indictment had not qualified themselves as jury commissioners." In support of this motion, the defendant offered the oaths of office filed by the county commissioners, which were taken by them as county commissioners, and also introduced the original list of persons filed in the office of the clerk of the circuit court, containing the names of the persons drawn to serve as grand jurors for the term of the court at which the indictment against the defendant was found. This list was signed by "W. W. Wethington, Carter Scott, Eli Hyche, W M. Sheerer, Co. Commissioners." The court overruled this motion, and the defendant duly excepted. The defendant then moved the court to quash the venire for this week, upon the grounds that it was not drawn as required by law. This motion was overruled, and the defendant duly excepted. The defendant then moved to quash the venire in this case upon the following grounds: "(1) The indictment charges him with murder in the first degree, and no copy of the venire has been served on him or his attorneys. (2) For that no copy of the indictment has been served on him or his attorneys. (3) For that no special venire has been drawn for the trial of this case. (4) For that no copy of the special venire drawn for the trial of this case has been served on defendant or his attorneys. (5) For that no copy of the regular petit juries drawn and summoned for this week of this term of the court has been served on the defendant or his attorneys. (6) For that no copy of petit juries organized for this week has been served on the defendant or his attorneys." In support of this motion the defendant offered in evidence the record in the case. The bill of exceptions recites that then "the solicitor stated to the court that he would elect to prosecute the defendant for murder in the second degree." The court then overruled the motion, and the defendant then and there duly excepted.

The evidence introduced by the state tended to show that in Walker county, Ala., before the finding of the indictment the defendant, John Linnehan, killed Allen Oakley, deceased by shooting him with a pistol. The ball entered the body of Oakley under the left shoulder blade about four inches from the backbone, and came to the surface under the right nipple. It further tended to show that Oakley was marshal of Carbon Hill. The evidence for the state tended to show that the killing was done under the following circumstances: One George Fram was to have a trial before the mayor of Carbon Hill. The case was called and continued, and then Oakley walked out on a small porch in front of the mayor's office, and Linnehan asked Oakley why he had the trial put off, and Oakley said he was running that court. Linnehan told him he was running it a hell of a way. Linnehan was then standing on same porch, and stepped off and put his hand in his hip pocket. Oakley then told Linnehan to go off and let his business alone; that he wanted peace, and must have peace. Linnehan started up the street, going west, and as he walked off said, "Damn you! if you haven't got peace, I will give it to you." Oakley said, "John don't curse me now, you must not curse me," and stepped down from the porch. Linnehan got about 15 feet from Oakley, and called him an opprobrious epithet, and drew his pistol and held it down by his right leg, and as Oakley advanced towards Linnehan, and got within 8 or 10 feet, Linnehan turned and shot once at Oakley. Oakley then turned to leave, and took two or three steps, when Linnehan shot again, and Oakley grunted, and ran, staggering, about 25 feet, and fell; the second shot being the shot that killed Oakley. Some of the state witnesses testified that Oakley had his right hand up, gesticulating with it, and nothing in his hand, at the time he advanced on Linnehan up to the time of the first shot, and one witness testified he had both hands up. The state's testimony further tended to show that just after the shooting Linnehan gave himself up to one Lone Tesney, and told Lone Tesney that he shot Oakley; that he ran, but he shot him any way, and if he had not killed him he would go back and finish him.

The evidence for the defendant tended to show that the killing took place under the following circumstances: Linnehan went to the mayor's office where the trial of the said George Fram was to be held. The trial had been postponed a number of times. It was announced that evening that the trial was again continued. The mayor came out of his office, and the defendant asked him why the case was again postponed. While the defendant and the mayor were talking about the case, Oakley stepped up, and told Linnehan that he was running that court, and for Linnehan to go away and attend to his own business; at the same time Oakley put his hands on Linnehan's breast and pushed him away. Linnehan stepped off the porch, and started up the street, west. As Linnehan walked away, Oakley continued to talk about attending to his own business and getting peace. Linnehan said, "Damn it! you've got peace." Oakley said, "John, you must not curse me," and stepped down off the porch, towards Linnehan. Linnehan, while he was still walking away, called Oakley an opprobrious epithet. Some of the testimony tended to show that Linnehan said this in a muttering tone of voice. When Oakley stepped down from the porch he put his right hand to his hip pocket, and started towards Linnehan, and was pulling and jerking at something. When Linnehan shot first, Oakley turned his left side to Linnehan, and still pulled at something in his hip pocket. Then Linnehan shot again, and Oakley grunted and ran, and no more shots were fired. A large number of persons were present and saw the difficulty. Both Linnehan and Oakley were in their shirt sleeves. Immediately after the shooting, Oakley was examined, and a pistol found in his right hip pocket. Some of the witnesses said it was in the right hip pocket, and others said it was in the left hip pocket.

The evidence pertaining to the rulings upon the evidence, to which exceptions were reserved, and which are reviewed on the present appeal, are sufficiently stated in the opinion.

In the general oral charge to the jury the presiding judge instructed them as follows: "If you believe the evidence beyond a reasonable doubt, you will find that within this county, and before the finding of this indictment, a homicide has been committed, and that Allen Oakley was the victim, and John Linnehan the perpetrator." The judge further said in his oral charge: "The next question of fact is, could the defendant have made his escape without increasing his peril?" The judge said further in his oral charge: "If the defendant could have escaped without increasing his peril it was his duty to do so." To the giving of each of these separate portions of the court's oral charge the defendant separately excepted, and also separately excepted to the court's refusal to give the general affirmative charge requested by him.

Coleman & Bankhard, for appellant.

William C. Fitts, Atty. Gen., for the State.

HARALSON J.

1. The record in this case does not show...