Pate v. State
| Decision Date | 17 January 1907 |
| Parties | PATE v. STATE. |
| Court | Alabama Supreme Court |
On Rehearing, March 2, 1907.
On Rehearing.
Appeal from Circuit Court, Pickens County; S. H. Sprott, Judge.
Can Pate was convicted of murder, and he appeals. Affirmed.
Upon his arraignment upon the indictment the defendant interposed the following motion to quash the same: To this motion the state interposed demurrers: These demurrers were sustained, and upon calling the case for trial the defendant interposed a motion to quash the venire drawn for the trial, to the regular panel thereof, for the same reasons assigned in the motion to quash the indictment. The state interposed the same demurrers thereto, with a change as to the kind of jurors, and the demurrers were sustained.
Upon the introduction of Mrs. Pate and the witness Shirley, each were permitted to testify that on Tuesday night, following the shooting that morning, deceased told them repeatedly that he was going to die, that he could not recover from the wounds, and that he had no hope of ever getting well again. These declarations were objected to, but were overruled, when the solicitor informed the court that they were asked as a predicate for the introduction of dying declarations. By Mrs Pate the state proved the declarations of the deceased, made on Wednesday morning after the shooting on Tuesday, that defendant shot him, and the circumstances surrounding the shooting. On cross-examination it was shown that the declarations she testified to were not taken down in writing and for that reason motion was made to exclude them, as another witness had reduced them to writing. This motion the court overruled. When defendant's witness was upon the stand the defendant asked him if the deceased was in the habit of carrying concealed weapons, and the witness answered that he did not know whether he was or not, that the only time he ever saw him with a pistol was about two years before, and that it was not concealed. The state moved to exclude that part of the answer of the witness as to the deceased having a pistol two years before.
The testimony for the state tended to show that as Walter Pate and his father were returning from a trip to the place from whence they had moved, the father riding in a wagon and Walter walking behind, they passed in front of the gate of the defendant. The defendant was there near the gate, with his gun setting near by, and defendant's son was standing at the gate, with a gun in his hand. Some conversation ensued, and defendant raised his gun and fired, striking deceased with a load of BB buckshot, the same entering deceased's back near the small of the back, and making the wound 3 by 3 1/2 inches; that this happened Tuesday morning, and deceased died the following Saturday morning. The clothes worn by deceased were shown to be in the same condition in which they were when the shooting occurred except that they had been washed. It was shown that there was no left-hand hip pocket in deceased's trousers; but there was a right-hand pocket, and it was shown that two of these shots passed through the right-hand pocket near the top. It was also shown that the deceased was a left-handed man. Evidence for the defense tended to show that, as deceased was passing along the road, a conversation ensued between him and defendant in which some opprobrious language was used by deceased towards defendant, and, upon defendant's replying thereto, the deceased said he would kill him, and immediately advanced rapidly towards him, throwing his hand back toward his hip pocket, when defendant fired, and deceased staggered off a few steps and fell.
At the conclusion of the testimony the defendant requested a number of charges, which were refused: (1) "If the defendant shot under the bona fide belief that his life was in danger, and he had, under all the circumstances, reasonable cause to believe that he was in imminent danger at the moment the shot was fired, it would be immaterial whether there was such actual danger or not." (A) "If the prisoner has proven a good character as a man of peace, the law says that such good character may be sufficient to create or generate a reasonable doubt of his guilt, although no such doubt would have existed but for such good character." (18) "One is justified in taking the life of another, if at the time there reasonably appeared to be a present impending necessity to do so."
The court gave the following charges for the state: (1) "The state is not required to prove the defendant's guilt beyond all doubt, but only beyond a reasonable doubt." (2)
The other facts sufficiently appear in the opinion of the court.
Daniel Collier and Curry & Robinson, for appellant.
Massey Wilson, Atty. Gen., for the State.
The motion to quash the indictment did not disclose a good ground for quashing, and the demurrers thereto were properly sustained. Section 5269, Code 1896; Thompson v. State, 122 Ala. 12, 26 So. 141.
The demurrer to the motion to quash the venire was properly sustained. Section 4997 of the Code of 1896, among other things, provides: "And no objection can be taken to any venire facias for a petit jury, except for fraud in drawing or summoning the jurors." The cases cited by counsel for appellant were decided before the adoption of the Code of 1896. Wells v. State, 94 Ala. 1, 10 So. 656. Johnson v. State, 102 Ala. 21, 16 So. 99. The words above quoted from section 4997 of the Code of 1896 were evidently adopted by our lawmakers to cover a case like this and to cure the defect in the law as construed in the Wells and Johnson Cases, supra.
The trial court did not err in overruling defendant's motion to exclude the evidence of witness Shirley as to what defendant said as to his condition and that he would die. It was a predicate for dying declarations which were subsequently introduced in evidence. There was no merit in the objection by the defendant to the proof of the declaration made by deceased, as a sufficient predicate had been established.
The clothes of the deceased were properly admitted in evidence. The witness testified that the clothes were in the same condition as when taken off the deceased, except that they had been washed. Granting that the blood had been...
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