Logan v. State

• Decision Date: 07 February 1907
• Citation: Logan v. State, 149 Ala. 11, 43 So. 10 (Ala. 1907)
• Parties: LOGAN v. STATE.
• Court: Alabama Supreme Court

43 So. 10

149 Ala. 11

LOGAN v. STATE.

Supreme Court of Alabama

February 7, 1907

Appeal from Circuit Court, Fayette County; S. H. Sprott, Judge.

John Logan was convicted of murder in the second degree, and appeals.Affirmed.

The defendant was indicted for murder in the first degree, tried convicted of murder in the second degree, and sentenced to the penitentiary.He entered a motion to quash the indictment because preferred by a grand jury drawn by persons not authorized by law to draw grand juries.This motion was based on the fact that since the drawing of the grand jury two of the commissioners who were present and assisted in the drawing had been ousted from that office by quo warranto proceedings.It was further shown that at the time of the drawing of the jury they each were acting by virtue of a commission issued to them from the proper legal authorities.

The predicate laid for the introduction of the dying declarations was as follows: Two witnesses reached him soon after he was shot, and he said to them that he was shot, and could not get well, and was going to die, and asked to be gotten home as soon as possible, that he might be there when he died; that he knew he was going to die, and could never get well.When the defendant was upon the stand as a witness the defendant offered to show that he had had a previous difficulty with deceased, and afterwards to go into the details of the difficulty.This latter evidence the court sustained an objection to.

The opinion is full as to the objection to the grand jury on account of being composed of less than 15 members.

Charge 2 is as follows: "The court charges the jury that if they believe from the evidence in this case, beyond a reasonable doubt, that the defendant cursed Sam Duncan, and told Duncan he was going to kill him, and this was said by the defendant as soon as Duncan came into sight of him the evening of the shooting, and, further, that the defendant immediately after using this language, shot Sam Duncan, then the defendant could not be acquitted on the plea of self-defense."

DowdellAnderson, and Denson, JJ., dissenting.

J. J Mayfield, for appellant.

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

DOWDELL J.

The commissioners H. Brown and W. M. Wright, who acted with the jury commissioners that drew the grand jury which found and returned the indictment against the defendant, were commissioners de facto, if not commissioners de jure.They each at the time held a commission of office regularly issued to each of them as such commissioners, and the fact that they were, subsequent to the time of the drawing of the jury in question, ousted of the office of commissioner on quo warranto proceedings against them, is of no importance.They each, while acting as commissioners in the drawing of the jury, acted under color of office, and were therefore de facto commissioners.Cary v. State,76 Ala. 78;Spraggins v. State,139 Ala. 93, 35 So. 1000.The rule is well settled that the official acts of an officer de facto are just as valid for all purposes as those of an officer de jure, so far as the public and third persons are concerned.Cary v. State, supra;Joseph v. Cawthorn,74 Ala. 411, and cases there cited.

The predicate for the admission of evidence of dying declarations was sufficient, and no error was committed in overruling the defendant's objections to this evidence.

There was no error in sustaining the objection of the state to evidence by the defendant, when testifying as a witness in...