Longmire v. State

• Citation: 130 Ala. 66,30 So. 413
• Parties: LONGMIRE v. STATE.
• Decision Date: 06 June 1901
• Court: Supreme Court of Alabama

30 So. 413

130 Ala. 66

LONGMIRE v. STATE.

Supreme Court of Alabama

June 6, 1901

Appeal from circuit court, Marion county; John C. Anderson, Judge.

Joe Longmire was convicted of murder, and he appeals. Reversed.

After the trial was entered upon, and after the jury to try the defendant had been impaneled, and the case had been put to the jury by the state, the defendant moved the court to qaush the venire, upon the ground that the copy of the venire served upon the defendant was not a true copy of the original, in that upon the original the name of one of the jurors appeared as George Loley, and upon the copy the name appeared as George Boly. The court overruled this motion, and the defendant duly excepted. In the course of the trial the defendant introduced as a witness one McNeil, who testified to the good character of the defendant in the community where he lived for peace and quiet. Upon the cross-examination of this witness, he was asked by the solicitor for the state the following question: "If the defendant and the deceased had not had a difficulty about two weeks before the homicide and if defendant had not at the time struck the deceased on the head with a hoe?" The bill of exceptions recites that to this "question the defendant objected, said objection was overruled by the court, and the defendant excepted." Upon the witness answering said question in the affirmative, the defendant in rebuttal asked the witness the following question: "If deceased did not bring on the difficulty at the time he was struck with the hoe by attacking the defendant in his (defendant's) house?" The state objected to this question, the court sustained the objection, and the defendant excepted. These are the facts relating to the only questions presented for review on the present appeal.

Hybart & Barefield, for appellant.

Chas G. Brown, Atty. Gen., for the State.

DOWDELL J.

A mistake in the name of a juror, either in the venire or in the list served on the defendant, is not sufficient cause to quash the venire. Code 1896, § 5007; Kimbrell v. State (in MS.) and authorities there cited. Moreover, the objection was not made until after the jury of 12 to try the case had been selected and sworn. The objection came too late for any purpose.

The objection to the question asked by the solicitor on the cross-examination of the defendant's witness McNeil was general, without stating any ground, and went to the interrogatory in its entirety. The question called for both legal and illegal evidence. So far as showing a prior difficulty between the defendant and deceased, it was proper and legal for the purpose of showing ill will or malice. But it was improper and illegal wherein it sought to elicit the particulars of such prior difficulty. Harrison v State, 78 Ala. 12; Garrett v. State, 76 Ala 21; McAnally v. State, 74 Ala. 9; Gray v State, 63 Ala. 66; Jones v. State, 116 Ala. 468, 23 So. 135; Harkness...