Pickens v. State

• Decision Date: 22 June 1897
• Citation: 115 Ala. 42,22 So. 551
• Parties: PICKENS v. STATE.
• Court: Alabama Supreme Court

22 So. 551

115 Ala. 42

PICKENS v. STATE.

Supreme Court of Alabama

June 22, 1897

Appeal from circuit court, Morgan county; H. C. Speake, Judge.

Will Pickens was convicted of murder, and appeals. Reversed.

The defendant moved the court to quash the indictment upon the grounds: "(1) That it was not found and returned into court by a legally organized grand jury. (2) Because the grand jury that returned the indictment was not drawn from the jury box by the jury commissioners. (3) Because said grand jury was not drawn and summoned as is required by law. (4) Because said grand jury was not drawn and summoned as required by law, in this: that the sheriff of the county notified them that they must be at the court house on April 15, 1895, and after they had appeared the presiding judge entered an order directing the sheriff to summon a grand jury, and the same persons that the sheriff had previously notified to appear as grand jurors were summoned by him as grand jurors, and impaneled as a grand jury. (5) Because said grand jury was drawn contrary to law, in this: that it was drawn by virtue of an order of the presiding judge, and not by the jury commissioners, as the law requires. (6) Because the sheriff, without an order of court, summoned the members of said grand jury to be and appear at the court house at the term at which said indictment was found. (7) Because an order to the sheriff to summons said grand jury was not made by the court until after said jury was summoned by the sheriff." In support of this motion, the defendant introduced as a witness A. B. Campbell, who testified: That he was sheriff of Morgan county, Ala., and had been since 1892. That prior to the April term, 1895, of the circuit court of Morgan county, he received a letter from Hon. H. C Speake, judge of the Eighth judicial circuit of Alabama stating that the jury commissioners of Morgan county had failed to draw a grand jury for said term of the circuit court of said county, and instructed him that he would have to summon said grand jury after the court met. That witness thereupon, prior to the convening of said term of court, in riding over the county, saw citizens, and told them that he expected he would have to summon a grand jury when court met and that if they would be at the court house, and if he was ordered to summon a grand jury, he would summon them. He did not summon any one until after he got the order, and no one before he got the order, at the court house of Morgan county on the first Monday of the April term of the circuit court of Morgan county, to wit, April 15, 1895, and that after court had convened, and had made an order therefor, he summoned said citizens to serve as grand jurors for said term. Nor did he promise any one of them that he would summon him or them before he got said order. Upon the hearing of this testimony the court overruled the motion to quash the indictment, and to this ruling the defendant duly excepted.

The evidence in behalf of the state was circumstantial, and tended to show that just a short time before the killing the deceased, with two or three other persons, had a dispute or quarrel with the defendant; that the deceased and his companions walked about a half or three-quarters of a mile away from the defendant's house, and that as they were going from there they noticed two persons following them, one of whom they thought was the defendant; that, after the deceased and his companions entered the house, two people knocked at the door and asked for certain persons, referring to the deceased and his companions; that the voice of the person making the inquiry was that of the defendant; that the persons making the inquiry were told that the people asked about were not in the house, and that a short time thereafter, as Oscar Pickens started out of the door of the house, he was fired upon with a pistol, from the effects of which wound he died in a short time. One of the witnesses testified that the person with whom the deceased and his companions had a fuss, and who called at the house were the deceased was, was the defendant. The other witnesses for the state testified to circumstances tending to show that the person who fired the fatal shot was the defendant. The testimony for the defendant tended to prove an alibi, and several witnesses testified that at the time of the killing he was in some other part of Decatur,-the town in which the homicide occurred.

Upon the introduction of all the evidence the court, in its general charge, instructed the jury, among other things, as follows: "That the defendant cannot be convicted under this charge for anything but murder in the first degree murder in the second degree, or manslaughter." To this portion of the court's general charge the defendant separately excepted, and also excepted to the court's giving to the jury, at the request of the state, the following written charges: "(1) I charge you, gentlemen that a 'moral certainty' means nothing more than a reasonable doubt. (2) A reasonable doubt is simply such a doubt as a reason can be given for. Therefore, before the jury can acquit the defendant on the ground that they have a reasonable doubt of defendant's guilt, they must be able to give a reason for so finding, from the evidence." The defendant then asked 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 evidence against the defendant is circumstantial, and, before you can convict him on such testimony, the proof must be very strong and cogent,-so much so as to exclude every reasonable doubt and probability of his innocence." "(3) The evidence on the part of the state against the defendant is circumstantial, and, before you can find him guilty on such testimony, you must believe from the evidence, beyond all reasonable doubt, and to a moral certainty, that no other person could have done the killing." "(24) A probability that some other person may have done the killing is sufficient to create a reasonable doubt of the guilt of the defendant, and therefore for his acquittal." "(26) If either one of your minds has a reasonable doubt, from the evidence, of the guilt of the defendant, then it is your duty to render a verdict of not guilty. (27) The evidence against the defendant is circumstantial, and, to support a verdict of conviction, it must be consistent with guilt, and inconsistent with any other reasonable hypothesis." "(29) The evidence against the defendant is circumstantial, and, before you can convict on such testimony, it is not only necessary that the circumstances, taken together, should be of a conclusive nature, such as to produce a moral certainty of guilt, but they must go further, and exclude every other reasonable theory that the deceased was killed by some one else." "(41) Before you can find the defendant guilty, the evidence against him must be inconsistent with any reasonable theory that the defendant is innocent, and that some other person was the guilty agent. (42) To justify a conviction of crime on circumstantial evidence alone, it must be inconsistent with any reasonable theory of innocence. (43) The guilt of the defendant is established, if at all, by circumstantial evidence; and, before you can convict on such evidence, it should not only point him out as the guilty man, but be inconsistent with any reasonable theory as to his innocence." "(...