Miller v. State
| Decision Date | 09 May 1901 |
| Parties | MILLER ET AL. v. STATE. [1] |
| Court | Alabama Supreme Court |
Appeal from criminal court, Jefferson county; S.E. Greene, Judge.
Frank Miller and Frank Duncan were convicted of murder. Duncan was sentenced to the penitentiary for life, and Miller sentenced to be hung. Both defendants appeal. Affirmed.
The day the case was set for trial, and before entering upon the trial, the defendant Miller moved the court to grant a severance, and asked that he be tried alone. This motion was overruled, and to this ruling the defendant duly excepted. No motion for a severance had been previously made by either of the defendants.
The evidence on the part of the state tended to show that on Tuesday night, the 27th of March, 1900, a little after midnight, James W. Adams and George W. Kirkley, who were policemen in the city of Birmingham, and while on duty as such policemen, were shot, from the effects of which wounds they died a few days later; that each of the officers was shot with a 38-caliber pistol bullet, but that said bullets were of apparently a different style and weight. The evidence further tended to show that on the night of the killing between 9 and 10 o'clock, seven or eight men went to the office of the Standard Oil Company, which is located a little way out from the center of the city of Birmingham, and robbed said office; that they assaulted one Clayton, who was the night watchman, by knocking him in the head with a blunt instrument and shooting him with a pistol; that they took from him his pistol and the keys of the office, and locked him up in a closet; that they then blew open the safe that was in the office of the company, and took therefrom something over $300 in money, a pocketbook, and the contents thereof; that, on the afternoon of the same day of the robbery, the two defendants were seen in the neighborhood of the Standard Oil Company's office, and they made inquiries of Hunter A. Smith and Marida Wilson, who were examined as witnesses, as to whether or not policemen from the city ever came that far out in the neighborhood; that the defendants, together with several other parties, rented a room on Twentieth street on the day of the robbery and killing, and paid a week's rent in advance; that they left the room in the afternoon of the day of the killing, and never returned again. The testimony of the state further tended to show that the two defendants were arrested by the deceased policemen on the charge of robbery, grand larceny or assault with intent to murder at the office of the Standard Oil Company, which offense, as stated above occurred on the night of the shooting and a short time before; that said police officers had been informed of the commission of said offense that night by Capt. Weir, of the police force of said city; that the defendants were seen near midnight coming from the direction of the Standard Oil Company, and were followed by the deceased officers until they were arrested; that the defendants were aware that the policemen were following them before the arrest; that the defendants went into a saloon by one door, and that while they were in the saloon Policeman Adams passed through; that thereupon the defendants went out of the other door, and were seen talking together; that they were soon overtaken by the two policemen, and placed under arrest; that, upon being arrested, they stated to the policemen that they were railroad men, one of them claiming to be an engineer, and the other a fireman, on the Southern Railway; that these statements as to their occupations were untrue, and the policemen stated to them that they would have to go with them to the police station, which they assented to do; that Officer Kirkley was walking in front with the defendant Duncan, and Officer Adams was a few feet behind them with the defendant Miller; that Duncan was on the left side of Kirkley, and Miller was on the right-hand side of Adams; that they walked thus along for a short distance, when all at once the policemen were fired upon, the firing on the part of the defendants being simultaneous; that 15 or 18 shots were fired in quick succession; that Officer Kirkley fired five shots Adams three, and the others were fired by the defendants; that the defendants, after the firing commenced, ran, and continued to fire while they ran; that the defendant Miller wore a light-colored overcoat, which he took off after the shooting began and laid on the sidewalk, and then continued his rapid flight; that shortly thereafter the said coat was picked up by a policeman, and upon its being examined it was found to contain the pocketbook and contents which had been stolen from the Standard Oil Company safe a few hours before, and also a bottle not quite full of a liquid, which was shown to be highly explosive. The evidence further tended to show that Kirkley was shot in the left side, and Adams was shot in the right side. There was evidence introduced that the defendant Miller made a voluntary confession that he was one of the parties arrested on the occasion of the shooting of Officers Adams and Kirkley, and denied that Duncan was present. He also testified to substantially the same facts. There was evidence introduced on the part of the state identifying both of the defendants as being the persons who were with the officers at the time of the shooting, and who fired the shots inflicting the fatal wound. The evidence for the defendants tended to show that the defendant Duncan was not present at the time of the shooting, and was not arrested by the officers. There was also evidence on the part of the defendants tending to show that Miller did not shoot either of the officers. Capt. Weir, who was the captain of the police at the time of the shooting, testified, against the objection and exception of the defendants, to having obtained information in reference to the robbery committed at the Standard Oil Company's office, and to the further fact that he communicated this information to Policemen Adams and Kirkley, and instructed them to keep a close watch for the purpose of discovering and arresting the persons who committed the crime. The other facts relating to the rulings of the trial court which are reviewed on the present appeal are sufficiently shown in the opinion.
Knox, Bowie & Blackmon, J. M. Chilton, and W. J. Clift, for appellants.
Chas. G. Brown, Atty. Gen., H. P. Heflin, C. W. Ferguson, B. M. Allen, and Fred S. Ferguson, for the State.
"When two or more defendants are jointly indicted, they may be tried either jointly or separately, as either may elect." Code, § 5275. Code, rule 32, pp. 1200, 1201. This rule is in no sense violative of the statute. It does not defeat nor encroach upon the right given by the statute, but is merely supplementary and complementary thereto, in providing when that right must be claimed; the provision being necessary to the prompt and orderly course of justice, and leaving all defendants in all cases abundant opportunity to avail themselves of the right the statute gives them. The indictment in the case at bar charges a capital offense, and falls under the first clause of the rule. By not availing themselves of the opportunity they had to demand a severance at or before the time of the order made setting a day for the trial and for a special venire they waived their right, and the court committed no error in overruling and denying the motion for severance made by defendant Miller on the day set for the trial of the case.
Dr. Whelan's testimony as to the course of the bullet which killed Kirkley was relevant and material, though this indictment is for the murder of Adams. It went to support the theory of the state, and to corroborate other evidence adduced by the prosecution that each of the defendants participated in the killing of the officers with a common intent to rid themselves of their captors.
There was a question of the indentity of the defendants with the men whom the officers had in charge, and who, after apparently submitting to arrest, suddenly set upon Adams and Kirkley and killed them. As to Duncan this issue continued throughout the trial, his defense being an alibi. Miller took the stand, being the last witness examined for the defense and admitted his identity, but denied participation in the killing. But doubtless he was driven to this admission by the strong evidence introduced by the state going to show that he was one of the men arrested by the officers and participating in the homicides. So that it is not inapt to say that the issue of identity as to each of the defendants was a material and prominent issue throughout the introduction of testimony in chief by the prosecution. Both the defendants were strangers in Birmingham, the scene of the murders. They came there a day or two before the homicides. They left as soon after as possible. Miller was captured in Anniston in the course of his flight. Duncan was captured in Chattanooga. Duncan denied throughout that he was in Birmingham at all. Miller was in the attitude of the same denial until he went on the stand, so far as the record shows. The testimony of eyewitnesses of the shooting tended to identify the defendants as the guilty parties, but the shooting was at night, and the identification was...
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