Mitchell v. State

• Decision Date: 17 April 1901
• Citation: 129 Ala. 23,30 So. 348
• Parties: MITCHELL v. STATE.
• Court: Alabama Supreme Court

30 So. 348

129 Ala. 23

MITCHELL v. STATE.

Supreme Court of Alabama

April 17, 1901

Appeal from circuit court, Marshall county; J. A. Bilbro, Judge.

D. P Mitchell was convicted of murder in the second degree, and appeals. Reversed.

The defendant filed a plea in abatement to the indictment upon the ground that the grand jury which preferred said indictment was an illegal body, in that the jurors composing said grand jury were not drawn in the presence of the clerk sheriff, and probate judge, or either of them, as required by law, but were drawn by the four county commissioners of Marshall county. A demurrer was sustained to this plea, to which ruling the defendant duly excepted. Before entering upon the trial of the case the defendants made a motion to quash the special venire for the trial of the defendant, upon the following grounds: "(1) Because Z. R. Dabbs was drawn and summoned as a regular juror for this the third week, and his name is not on the list served on the defendant's counsel. (2) Because J. M. Allen was drawn and summoned as a regular juror for this the third week, and his name is not on the list served on defendant's counsel. (3) Because the regular jurors for this the third week were not drawn by or in the presence of the clerk sheriff, and probate judge, or either, but were drawn by the county commissioners." Upon this motion there was evidence introduced showing that upon the regular venire drawn by the jury commissioners for the week in which the trial of the defendant was set the name of "J. N. Allen farmer, of beat No. 12," appeared; that the deputy sheriff had a summons for J. N. Allen as a grand juror for said week; that he went to the home of J. M. Allen, who was a farmer and lived in beat No. 12, and was told by the latter's wife that his name was not J. N. Allen, but J M. Allen; that thereupon the deputy sheriff told his wife that he would not leave a summons for her husband, but she could tell him to come to court if he wanted to, as there was no other Allen in that beat; that the said J. M. Allen appeared on Monday of the third week of the court, which was the week in which the trial of the defendant was set, and was impaneled as a juror for said week, but that neither the name of J. N. Allen nor of J. M. Allen was on the list of jurors for the week served on the defendant. The return made by the sheriff of the original venire for the jurors drawn by the jury commissioners for the week in which the trial of the defendant was set did not show any service on J. M. Allen. The evidence in reference to Z. R. Dabbs being upon the jury showed the following facts: That the sheriff called upon said Z. R. Dabbs, and said that he was looking for Jim Dabbs, for the purpose of serving upon him a summons to serve as a juror for the third week of the circuit court, which was the week in which the trial of the defendant was set. That the name of the regular venire drawn by the jury commissioners was "J. R. Dabbs, farmer, of beat No. 24." That Z. R. Dabbs was the only person by the name of Dabbs living in beat 24. That the sheriff told said Z. R. Dabbs that he had better come down and see if he was the juror that was summoned. That on Monday of the third week of the court said Z. R. Dabbs appeared, and was impaneled on the regular jury for said week, but his name did not appear upon the list served upon the defendant. The name of neither Zachariah R. Dabbs nor Z. R. Dabbs was on the venire for jurors drawn for the third week of the court, and the return of said venire by the sheriff as to said J. R. Dabbs was, "Not found." It was admitted that the regular jurors for the third week were not drawn by or in the presence of the circuit clerk, sheriff, and probate judge, but were drawn by the court of county commissioners, acting as a jury commission for the county. Upon these facts the court overruled the motion to quash the special venire, and to this action of the court the defendant duly excepted.

The evidence for the state tended to show that as the defendant and his two sons were going along a road in front of the house of Dave Thompson, the deceased, Dave Thompson, came out of a shop across the road from his house, and as he ran across the road and into his yard, and got upon the porch of his house, the defendant fired upon him with a shotgun and killed him. The evidence for the defendant tended to show that on the morning of the killing he had sent his two sons to the town of Joppa to borrow a chisel; that in going to Joppa his sons had to pass by the house of the deceased; that the defendant had been told that the deceased held up his son Lint Mitchell the evening before, and had made him admit, through fear of great bodily harm, that he had insulted the deceased's daughter, which was not a fact; that, after his sons failed to return with the chisel for a long time, the defendant's wife remarked to him that she had heard a gun shot in the direction of the deceased's house, and she was afraid the deceased had done some harm to the defendant's sons; that thereupon the defendant took his gun, and went in the direction of Joppa, to find his sons; that he passed by the house of the deceased, and, after finding his sons at Joppa, they started home together; that on their return, as they came within a hundred yards of the deceased's house, the latter commenced to run across the road towards his house, and called to his daughter to bring him his gun quick; that she ran for his gun, and the deceased leaped over his fence, and that as he got upon his porch his daughter was going to him with his gun; and that, as he reached for his gun, the defendant, who had ridden up to the house opposite to where the deceased was standing, fired upon and killed him. There was also testimony introduced showing that the deceased was a man of bad, dangerous, and turbulent character, and that he had made threats against the defendant, which were communicated to him. There was also some evidence tending to show that the defendant was informed on the morning of the killing that the deceased had held up his sons on their way to Joppa. There was also evidence introduced showing that after the killing the defendant went to Marion county, Ala., for a short time; the defendant testifying that he had gone to Marion county upon the advice of his friends.

The bill of exceptions contains the following recitals in reference to the argument of the solicitor for the state: "The solicitor, in his argument to the jury, referred to the case of Perry v. State, 94 Ala. 25, 10 So. 650, and argued that there was an important difference between the case at bar and Perry's Case, in this: that in Perry's Case that defendant was in his proper place of business, but that in the present case defendant was not in his place of business; that the evidence tended to show the defendant went to Thompson's house for a difficulty. The solicitor also argued in his argument to the jury that, if they desired to indorse the conduct of the defendant on the occasion of the killing, they should find him not guilty, but that, if they did not wish to indorse it and to hold it up as a public example to be followed, they should not acquit him."

The court, in its oral charge to the jury, among other things, instructed them as follows: "In a case of homicide arising from the intentional use of a deadly weapon, the law presumes malice from the use of such weapon, unless the evidence in the case rebuts such presumption; and, if such presumption is not rebutted by the evidence in the case, then you are authorized to find that the killing was with malice." To this portion of the court's general oral charge the defendant separately excepted.

The court at the request of the defendant gave to the jury many written charges. In addition to the charges so given, the defendant also requested the court to give to the jury the following written charges, and separately excepted to the court's refusal to give each of them as asked: "(1) The court charges the jury that mere suspicious circumstances are in themselves insufficient to justify a conviction of crime; that, before a verdict of conviction is rendered by the jury, they should be so well satisfied of his guilt as to have no reasonable doubt from the evidence concerning it. (2) The court charges the jury that before they can convict the defendant the evidence must be so strong as to convince each juror of his guilt beyond reasonable doubt; and if, after considering all the evidence, a single juror has a reasonable doubt of the defendant's guilt, arising out of any part of the evidence, then they cannot convict him." "(4) The court charges the jury that they must have not only justifying reasons for a conclusion of guilt,-not only must they be able to say upon reason that the defendant is guilty,-but this conclusion must press itself upon the minds of the jury with such convincing clearness and force that they are unable to find in the whole evidence any reason for a contrary conclusion. (5) The court charges the jury that they should not capriciously reject the testimony of the defendant simply because he is interested, but, unless they have good reason to believe under all of the circumstances that the defendant has sworn falsely, then the jury should believe his testimony, and consider it along with all the other testimony in the case in making up their verdict. (6) The court charges the jury that there is no evidence in the case that Thompson was not under the influence of liquor at the time of the killing. (7) So if the evidence satisfies the jury that Dave Thompson had made threats against the life of Dab Mitchell, and if it further shows that some of these threats were communicated to him before the killing, then he would be justified...