Mizell v. State

• Citation: 184 Ala. 16,63 So. 1000
• Parties: MIZELL v. STATE.
• Decision Date: 30 June 1913
• Court: Alabama Supreme Court

63 So. 1000

184 Ala. 16

MIZELL v. STATE.

Supreme Court of Alabama

June 30, 1913

Rehearing Denied Dec. 18, 1913

Appeal from Circuit Court, Geneva County; H.A. Pearce, Judge.

Frank J. Mizell was convicted of murder in the second degree and sentenced to the penitentiary for 25 years, and he appeals. Reversed and remanded.

The defendant pleaded in abatement in pleas 1 and 2 the facts set forth in the opinion. The third plea was that the grand jury was illegally drawn in that the presiding judge of the circuit did not draw the jury, and the record does not disclose by whom said jury was drawn or when drawn, and does not disclose any authority for the summoning of said jury. The fifth plea sets up that Hon. R.H. Parks was the solicitor of the circuit; was not connected with defendant in any way that there was no vacancy in the office of solicitor; and that the court was without authority to appoint Hon. Albert E. Pace as special solicitor, but that he was appointed said solicitor and served with the grand jury finding the indictment. The motion to quash the venire was based: (1) On the fact that they were drawn by the judge in the clerk's office, and not in the courtroom or room where the court was held; (2) because during the first week, when the jury was drawn for the second week, certain named jurors then drawn were excused by the court from further attendance, and that the judge had time and opportunity before drawing the special venire to restore the names of said persons to the jury box but did not do so, and that they were not in the jury box at the time the special venire was drawn, and other matters not necessary to be set out.

The solicitor asked the witness Faulk: "Did you ever hear any one say that deceased had the reputation of being a man who would slip up behind a man and take advantage of him?" The witness answered: "Well, I did not have to hear any one say anything about it. He waylaid me at one time, and I know it from personal experience." On motion of the solicitor, the court excluded the answer of the witness.

The following charges were refused to defendant:

"(11) If there is a probability from all the evidence in the case that defendant was free from fault in bringing on the difficulty and was in actual or apparent danger to his life or limb, or defendant was impressed with the reasonable belief that he was in actual or apparent danger to his life or limb, and was also impressed with the reasonable belief that there was no mode of escape open to him without increasing the danger to his life or limb when he killed deceased, they should find defendant not guilty."

"(22) If the jury believe from the evidence that deceased made the first hostile demonstration by attempting, or apparently attempting, to draw a weapon from his hip pocket, and defendant honestly believed, or was reasonably impressed, that deceased was attempting to draw a pistol for the purpose of firing upon him, and was also reasonably impressed that he was in actual or apparent present danger to his life or limb, and there was no mode of escape open to him without increasing his danger, he would be justifiable in firing upon deceased, although it turned out that deceased was unarmed, provided defendant was free from fault in bringing on the difficulty."

"(1) If, by a preponderance of the evidence, the jury are satisfied that, at the time of the fatal encounter, defendant was afflicted with a mental disease, and that by reason of the duress of such mental disease he had so far lost the power to choose between right and wrong (although he may have known right from wrong as applied to the killing), and the alleged killing was so connected with such mental disease in the relation of cause and effect as to have been the product of it solely, the jury should acquit the defendant.

"(2) If the jury believe from the evidence that defendant, at the time he fired the fatal shot, was acting under duress of a mental disease which destroyed his free agency, so that his power to resist killing Ed Stamps was at the time lost, and the killing was the offspring of such mental disease solely, they should acquit the defendant."

Charges 3, 4, 5, and 6 were relevant to a dormant disease of the mental faculty which appeared only under grief, fear, excitement, and its development resulted in the killing, having been brought about by statements of deceased.

Espy & Farmer, of Dothan, W.O. Mulkey and C.D. Carmichael, both of Geneva, and W.L. Parks, of Andalusia, for appellant.

R.C. Brickell, Atty. Gen., W.L. Martin, Asst. Atty. Gen., and Hamilton & Crumpton and D.M. Powell, all of Evergreen, for the State.

ANDERSON J.

Section 15 of the present jury law (Acts 1909 [Sp.Sess.] p. 310) among other things, provides that if for any reason "the judge of the court fails to draw the juries as required in this section before the twenty days above mentioned the clerk of such court shall notify the judge of any court of record, except probate judges, residing nearest to the place of holding the court, and it shall be his duty upon receiving such notification to immediately draw the juries for the next term of the...