McLeroy v. State

• Decision Date: 09 February 1899
• Parties: MCLEROY v. STATE.
• Court: Alabama Supreme Court

25 So. 247

120 Ala. 274

MCLEROY v. STATE.

Supreme Court of Alabama

February 9, 1899

Appeal from city court of Gadsden; John H. Disque, Judge.

Andy McLeroy was jointly indicted with Columbus, alias Lum Evans for the murder of Parker Rowe, and upon a severance being granted, the appellant was tried separately; was convicted of murder in the second degree, and sentenced to the penitentiary for 10 years, and appeals. Reversed.

The defendant filed a plea in abatement to the indictment, in which he alleged that the indictment should be abated on the following grounds: (1) The list of the grand jurors is not shown to have been drawn by the county commissioners sitting as a jury commission. (2) Said list fails to show that it was drawn by the jury commission of Etowah county, and if so it is not shown that the commissioners had taken the oaths required by law. (3) Said grand-jury list purporting to be drawn by the jury commission fails to show that the said jury commission elected one of their members president as the law directs. (4) Said grand-jury list if selected by the jury commission fails to show that said jury commission was ever organized. (5) Said jury list fails to show that it was drawn by all the jury commissioners of a majority of the jury commission. (6) said jury list was not drawn by all the jury commission or a majority of said jury commission. To this plea in abatement the state demurred upon the ground that said plea states no ground which is sufficient at law for the quashing or abatement of the indictment. This demurrer was sustained and the defendant duly excepted. The facts of the case and those pertaining to the ruling of the court upon the evidence, are sufficiently stated in the opinion.

Upon the introduction of all the evidence, the defendant requested the court to give to the jury the following written charges and separately excepted to the court's refusal to give each of these charges as requested: (1) "The court charges the jury, if they believe all the evidence in this case they must acquit the defendant." (2) "The court charges the jury that if the jury believe from the evidence that Evans alone killed Parker Rowe and that McLeroy was too drunk to aid or abet or to conspire with Evans in the commission of the crime, then the jury cannot find the defendant guilty." (3) "The court charges the jury the evidence in this case shows that Evans has been convicted of murder in the second degree, and the jury cannot under the evidence in this case convict the defendant of murder in the first degree as charged in the indictment." (4) "The court charges the jury that if upon a fair consideration of all the evidence, the jury have a reasonable doubt growing out of any part of the evidence as to whether McLeroy was sufficiently sober to form the specific intent to take the life of Rowe, the jury cannot convict the defendant McLeroy of the offense charged in the indictment." (5) "The court charges the jury that if Evans killed Rowe and if McLeroy was too drunk to join in any conspiracy to take the life of Rowe and did not aid or abet in such killing, the jury must acquit the defendant." (6) "The court charges the jury that if the jury believe that if there was a plot between McLeroy and Evans to rob Rowe, and if the killing was after that plot had been consummated, and from a cause having no connection from the common object of the plot and was by Evans alone, the jury can not convict the defendant." (7) "The court charges the jury that if the jury have a reasonable doubt growing out of the evidence as to whether defendant besides being present aiding and abetting also participated in the felonious design to rob or kill Rowe, the jury must acquit the defendant." (8) "The court charges the jury that Evans has been acquitted of murder in the first degree and such acquittal of Evans is an acquittal of McLeroy of murder in the first degree." (9) "The court charges the jury that if the jury believe all the evidence in this case, they cannot convict the defendant of murder in the first degree as charged in the indictment." (10) "The court charges the jury no matter how strong the circumstances are pointing to the guilt of defendant, yet if they can be reconciled with the theory that some other person may have done the act, then defendant is not proven to be guilty." (11) "The court charges the jury that there is no conflict in this evidence that this defendant was drunk on that Saturday night, and if the jury have a reasonable doubt as to whether this defendant was sufficiently sober to form an intent to take life, they must acquit the defendant." (12) "The court charges the jury that there is no evidence in this case that McLeroy killed Parker Rowe, and before the jury can convict this defendant, they must be satisfied beyond all reasonable doubt that this defendant aided or abetted or conspired with Lum Evans who did the killing, and if the jury are so satisfied beyond all reasonable doubt that the killing was not in self-defense, or that they have no reasonable doubt that it was done in self-defense before they can find this defendant guilty of any crime." (13) "The court charges the jury that murder in the second degree is the willful malicious and intentional killing of a human being, and unless each of these three ingredients has been proven to the jury beyond all reasonable doubt they cannot find this defendant guilty of murder in the second degree and if the jury have a reasonable doubt as to whether this defendant was sufficiently sober to form the intent to take life, then they cannot find the defendant guilty of anything." (14) "The court charges the jury that murder in the first degree is the willful, intentional, malicious and premeditated killing of a human being, that if any of these four ingredients have not been proven beyond a reasonable doubt, they cannot convict this defendant of murder in the first degree, and if the jury has a reasonable doubt as to whether this defendant was sufficiently sober to form the intent to take life, they must find this defendant not guilty of any offense." (15) "The court charges the jury that there is no evidence in this case that this defendant killed Parker Rowe, and before the jury can convict this defendant for any offense charged in this indictment they must be convinced beyond all reasonable doubt that this defendant aided and abetted Lum Evans in killing Parker Rowe by a previously formed community of purpose between said Lum Evans and this defendant, and if the jury have a reasonable doubt as to whether this defendant was sufficiently sober to form a community of purpose with Lum Evans, they must acquit this defendant." (16) "The court charges the jury that if they have a reasonable doubt as to whether the killing was done deliberately, or as to whether it was done premeditately, then they could not find the defendant guilty of murder in the first degree, and if they have a reasonable doubt as to whether the killing was done in malice then they could not find the defendant guilty of murder in either degree, but only of manslaughter at the most, and if after considering all the evidence the jury have a reasonable doubt as to the defendant's guilt of manslaughter arising out of any part of the evidence, then they should find the defendant not guilty of any offense." (17) "The court charges the jury that good character itself is part of the evidence in this case, and if the jury upon a consideration of all the evidence have a reasonable doubt growing out of any part of the evidence the jury will give the defendant the benefit of such doubt and acquit him." (18) "The court charges the jury that there is no conflict in this testimony that Lum Evans killed Parker Rowe and there is no conflict in the evidence in this case that this defendant was drunk, and before the jury can find this defendant guilty, they must be convinced beyond a reasonable doubt that this defendant was sufficiently sober to form the intent to take life, or the intent to aid and abet Lum Evans in killing Parker Rowe, and if the jury are so convinced beyond all reasonable doubt they must further be convinced beyond all reasonable doubt that the killing of Parker Rowe by Lum Evans was not in self-defense, and if the jury have a reasonable doubt whether Lum Evans killed Parker Rowe in self-defense, they must acquit the defendant." (19) "The court charges the jury that the clothes worn by this defendant on that Saturday night are in evidence in this case, and the jury may examine these clothes, and see...