Peel v. State

• Decision Date: 13 April 1905
• Citation: 39 So. 251,144 Ala. 125
• Parties: PEEL v. STATE.
• Court: Alabama Supreme Court

39 So. 251

144 Ala. 125

PEEL v. STATE.

Supreme Court of Alabama

April 13, 1905

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

"To be officially reported."

Will Peel was convicted of murder in the second degree, and appeals. Affirmed.

On the trial of the case the defendant moved to quash the indictment, which motion was overruled by the court, and to this ruling the defendant duly excepted. The grounds of the motion and the evidence relating thereto are set forth in the opinion. The defendant also moved to quash the special venire served upon him. The court overruled the motion, and to this ruling the defendant duly excepted. The several grounds of the motion are set forth in substance in the opinion, except the second, fourth, and fifth grounds, which are as follows "Second. The order of this court directing the drawing and serving of the venire of petit jurors served upon this defendant, made and entered on Thursday, the 8th day of December, 1904, was void and without warrant or authority of law, because on said day, namely, the 8th day of December 1904, this court was not legally organized as a court, and was without power and authority to make said order for summoning and serving said venire of jurors. * * * Fourth. The regular venire of jurors drawn and summoned for the week of this court commencing December 12, 1904, was not drawn and summoned according to law. Fifth. The special venire of petit jurors drawn and summoned for the trial of this cause was not drawn and summoned according to law."

The evidence for the state tended to show that on the 19th day of September, 1904, the defendant shot and killed Will Canter that shortly before the killing the deceased, with others was in a field picking cotton; that the party left the field and went to the house of deceased, and in the afternoon started back to the field, deceased carrying a pistol with him; that they went along the public road towards the field where they had been engaged, and when within a short distance of defendant's house, which was on the same road, they saw defendant and his wife come out of the house and go towards the field, and that defendant had his gun across his shoulder; that deceased and the others with him overtook defendant and his wife, when defendant engaged deceased in a conversation regarding a previous dispute between them, in the course of which defendant took his gun off his shoulder, cursing deceased, and threw his gun up to shoot, and deceased started to draw his pistol, and as he did this defendant shot him. The evidence for the defendant tended to show that, when the deceased met him in the road, he cursed him and engaged defendant in a dispute, in the course of which deceased advanced towards him, cursing again, drew his pistol from his breast, and presented it towards defendant, when the latter raised his gun and fired; that defendant endeavored to retreat, and requested deceased not to have any difficulty with him.

Upon the introduction of all the evidence the defendant requested the court to give to the jury the following written charges, and excepted to the court's refusal to give each of them: "(1) The court charges the jury that if they believe, from the evidence, that the defendant was prompted to shoot Canter, the deceased, entirely because of passion suddenly aroused, then the jury cannot find the defendant guilty of murder in either degree. (2) If the jury believe, from the evidence, that deceased, Will Canter, was a man of bad character, and that his character was bad as being turbulent, violent, and blood-thirsty, and a fighting man, and as being a dangerous man, and that prior to the killing deceased had made threats to kill defendant, and that some of these threats had been communicated to defendant before the killing, and that defendant was free from fault in bringing on the difficulty, and that at the time of firing the fatal shot defendant either was, or reasonably appeared to be, about to sustain grievous bodily harm or lose his life at the hands of deceased, and that just prior to the time defendant shot deceased, deceased had drawn a pistol from his bosom and started to shoot defendant, defendant had the right to construe these acts on the part of deceased in the light of his character as a man and in the light of such threats. (3) If upon all the evidence the jury have a reasonable doubt that defendant did not act in self-defense in killing deceased, they must acquit him. (4) If upon all the evidence the jury have a reasonable doubt whether or not defendant acted in self-defense in killing deceased, he must be accquitted. (5) If the deceased is shown to be a man of turbulent, violent, and blood-thirsty character, and to have made threats to kill defendant, some of which had been communicated to him before the killing, and if defendant was free from fault in bringing on the difficulty, and if, just prior to the firing of the fatal shot, deceased drew a pistol, and raised his hand with a pistol in it within carrying distance for a pistol, then the defendant had a right to construe his conduct in the light of deceased's bad character and the threats made. And, if upon all the evidence the jury do not believe beyond a reasonable doubt that defendant is guilty, they must acquit him."

Espy & Farmer, for appellant.

Massey Wilson, Atty. Gen., for the State.

DENSON J.

The fall term, 1904, of the circuit court held for Houston county was organized on the 31st day of October, 1904, the day fixed by law upon which said term of said court should be convened. The court was organized and presided over during the first week of the term, until the afternoon of the 4th of November, 1904, by Hon. A. H. Alston, supernumerary judge for the state. On the 3d day of November, 1904, the grand jury organized by the court (Judge Alston presiding) at the above-named term returned the indictment in this case against the defendant, Will Peel, charging him with murder in the first degree. On the 4th of November, 1904, Hon. H. A. Pearce, judge of the Twelfth judicial circuit, relieved Judge Alston and presided over the court during the remainder of the term. On the same day, and after Judge Pearce had relieved Judge Alston, and was discharging his duties as presiding judge of said court, the defendant filed a motion to quash the indictment. The business of the court not having been disposed of at the regular term, an order was made by the court adjourning the court to December 8, 1904; the adjourned term to continue for the trial and disposition of civil and criminal cases until the court should be finally adjourned. The motion to quash the indictment was renewed at the adjourned term, and on the hearing was overruled. The averments of the motion were proved. It was also shown that the supernumerary judge was directed and instructed by the Governor to hold the first week of the fall term, 1904, of the circuit court for Houston county. Section 2 of the act of February 20, 1899 (Acts 1898-99, p. 237), which created this office of supernumerary judge, provides that such judge shall have power and authority, under the direction of the Governor, to hold any regular term of the circuit or chancery court in this state, and to exercise all the powers and privileges and perform all the duties of circuit judges and chancellors while in office. Section 3 of said act provides that it shall be the duty of every circuit judge and chancellor, when from sickness, or from being engaged in holding a special term of court, or from any other cause, he cannot attend a regular term of his court, to notify the Governor of that fact, etc. From this act it seems that, regardless of the cause, if the circuit judge cannot hold the regular term of the court, the supernumerary judge, when directed by the Governor, may do so. The proof, while it showed that the circuit judge was in Dothan, also showed that he did not appear and hold the court. We will presume, in the absence of anything to the contrary, that the circuit judge had notified the Governor that he could not attend the regular term of the court during the first week, and that it was upon such notification that the Governor directed the supernumerary judge to hold the court for the first week. Nor...