Powell v. State

• Decision Date: 19 December 1912
• Parties: POWELL v. STATE.
• Court: Alabama Court of Appeals

60 So. 967

7 Ala.App. 17

POWELL v. STATE.

Court of Appeals of Alabama

December 19, 1912

On Application for Rehearing, Jan. 13, 1913.

On Application for Rehearing.

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

Mark Powell was convicted of murder in the second degree, and he appeals. Affirmed.

W. L. Parks, of Andalusia, for appellant.

R. C Brickell, Atty. Gen., and W. L. Martin, Asst. Atty. Gen., for the State.

PELHAM J.

The conditions surrounding and illustrating the scene of the tragedy and leading up to it as narrated by the witnesses show that the deceased, with some four or five other young men companions, met on a certain Sunday morning in April, 1912, at Harmony Church in Pike county. Entertaining a common purpose to engage in gambling at a game with dice commonly called "craps," these young men some of whom had already commenced to drink whisky, repaired to the woods about half a mile behind the church, hitched their horses, spread lap robes upon the ground, gathered round this improvised gambling cloth, and all of them were engaged in gambling, and some were, or had been, drinking whisky when the defendant and two other young companions drove up on an expedition in quest of beer. The defendant and his two companions had a short time previous to joining the party in the woods back of the church gathered together on this same Sunday morning at a country store near by, and it seems the defendant had intrusted to one of the young men that had gone off and engaged in the crap game a dollar with which to procure beer for him (the defendant), and the three who had collected at the store drove off together in the defendant's buggy in search of the other party and the beer. Upon arriving at the scene of the gambling game, one of the members of the defendant's party went over to where the game was in progress, crossing a rail fence in doing so and endeavored to procure beer from some of the party engaged in "shooting craps." The defendant and his other companion remained on the other side of the fence from the crap shooting party, the defendant coming close up to, and resting against, the fence. The lap robes used as gambling cloths were just over the fence, the nearest edge of such cloth or robe being but a few feet from the fence. (For more than a year previous to this time bad feeling had existed between the defendant and the deceased.) When the defendant came up to, and rested his arm upon, the top rail of the fence, directly opposite to him across the lap robe and facing him sat the deceased, about 20 feet away, engaged at that time with five companions in gambling at the crap game. After the member of the defendant's party who crossed the fence had asked for and failed to secure the coveted beer, the defendant called to another member of the gambling party, to whom the defendant had the day before given a dollar for the purpose of getting some beer for him, and asked about the beer that was to be secured for him with the dollar given for that purpose. Just what took place from this point in the transaction leading up to the killing is in dispute, but it is not controverted that after certain bantering between the deceased and the defendant, the deceased got up and started towards the defendant, and that the defendant drew his pistol and shot the deceased dead, and seriously wounded one of the other members of the gambling party. The defendant fired six shots in rapid succession at close range, and the deceased moved only a few steps from the time the first shot struck him until he dropped down upon the ground dead. It was also shown that the deceased had a pistol on his person, handy to use, but whether or not he actually drew it from his hip pocket when he got up and started to go towards the defendant immediately before he was shot by the defendant the testimony is in conflict. The evidence is also in conflict with reference to what was said just preceding the shooting, by the defendant and the deceased having a tendency to show which party was at fault in this respect in bringing on the fatal difficulty. The defendant was charged with murder in the first degree, and admitted the killing, but contended that he acted through necessity in self-defense. There was evidence in behalf of the defendant having a tendency to show that he was acting in self-defense, and evidence of the state having a contrary tendency. The defendant also introduced evidence of threats made by the deceased some time prior to the killing. The jury returned a verdict of guilty of murder in the second degree, and fixed the punishment at imprisonment for 10 years.

When the court was impaneling the jury to try the case, it was shown that the grandmother of one of the jurors, on his father's side, and the grandfather of the defendant, on his father's side, were first cousins, whereupon the court excused said juror and struck his name from the list of jurors constituting the panel from which the jury was selected to try the case. The defendant excepted, and counsel urge this action of the court as error. The competency of jurors in respect to their relationship to parties is regulated by statute. Code, § 7276. When existing by consanguinity, the relationship disqualifies when within the ninth degree. Code, § 7276, par. 4. Computing the relationship under the proper rule, counting from the juror to the common ancestor and then down to the defendant, calling it a degree for each, ascending and descending, the juror is within the degree of relationship which disqualifies, and the court properly excused him and struck his name from the jury list.

The ruling of the court in admitting certain testimony of the witness Dr. Tompkins, to the effect that he said to Harmon, in the defendant's presence, when the three drove in sight of the gambling party that he (Tompkins) would get out of the buggy and go down where the gambling party were and get the beer, as the defendant and deceased were not on good terms, if error, was without injury. This testimony was later admitted without objection when the witness Harmon testified, and the defendant, when being examined as a witness in his own behalf, testified, to the same thing, and this testimony was without contradiction. McGuire v. State, 3 Ala. App. 40, 44, 45, 58 So. 60; McIntyre v. State, 1 Ala. App. 200, 55 So. 639.

The statement, made by the defendant after the killing, that the court refused to allow to go to the jury is shown to have been made by the defendant after he had given up his pistol and after he had gotten over the fence to that side upon which the deceased was lying dead, or so badly wounded that he was unconscious and his life necessarily despaired of and very rapidly ebbing away. At the time of this declaration of the defendant sought to be proven, the shooting and the rencounter were things of the past, and the deceased at that time no longer to be counted among the living. The court could not say with reasonable certainty that the declaration sought to be proven as a part of the res gestæ of the transaction was unpremeditated and spontaneously springing out...