Pynes v. State

Citation207 Ala. 395,92 So. 663
Decision Date09 February 1922
Docket Number4 Div. 926.
PartiesPYNES v. STATE.
CourtSupreme Court of Alabama

Rehearing Denied April 27, 1922.

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

Edgar Pynes was convicted of murder in the first degree, and he appeals. Affirmed.

Each count of an indictment must contain within itself all necessary allegations, and, in construing a later count of an indictment, resort cannot be had to the first.

The following charges are noted as refused to the defendant:

"(6) I charge you that if the testimony shows elements of self-defense on the part of Searcy Pynes, the burden is on the state to satisfy you that Searcy Pynes was not free from fault in bringing on the difficulty before you can convict the defendant."

(7) Same as 6, with this addition:

"And that defendant either fired the fatal shot or aided or abetted Searcy Pynes at the time of or prior to the firing of the fatal shot before you can convict the defendant."
"(13) The doctrine of a person assailed in his dwelling not being required to retreat applies to the curtilage, and if Searcy Pynes was within the curtilage of his own home at the time of the killing he owed no duty to retreat if attacked by the deceased; and in such case you cannot convict defendant, even though you believe he aided or abetted Searcy Pynes in the killing."

(24) Practically the same as 13.

(D) Practically the same as 13 and 24.

Charges 14 to 24 have reference to an acquittal if any juror entertain any reasonable doubt as to whether the killing was done by Searcy Pynes with malice aforethought so far as murder in the first degree is concerned; also, as to murder in any degree if any juror entertained any reasonable doubt as to whether the killing was done with malice; also, if any juror entertains any reasonable doubt as to whether or not defendant aided or abetted Searcy Pynes at the time of or prior to the fatal shot.

R. C. Williams and Reid & Doster, all of Dothan, for appellant.

Harwell G. Davis, Atty. Gen., for the State.

SAYRE J.

Defendant (appellant) moved to quash the indictment, and separately each count thereof, on the ground that count 1 did not conclude "against the peace and dignity of the state of Alabama," and that count 2 likewise failed so to conclude, and, further, that count 2 did not commence according to the statute, viz.:

"The grand jury of said county charge that before the finding of this indictment ***."

The first objection to the indictment is answered by the decisions in McGuire v. State, 37 Ala. 161, and Harrison v. State, 144 Ala. 20, 40 So. 568.

The second would have been removed by the nolle prosequi as to the second count entered by the state (Barnett v. State, 54 Ala. 579), had the order in pursuance thereof been made a part of the record proper in the cause. The order of nolle prosequi should have been shown in the judgment entry. Petty v. Dill, 53 Ala. 641; Ross v. State, 62 Ala. 224; Diggs v. State, 77 Ala. 68; Durrett v. State, 133 Ala. 119, 32 So. 234; 1 Mich. Dig. p. 411, § 518.

The rule-except as to the formal conclusion in respect of which we have noted out decisions supra-is that each count must be sufficient in itself. Harrison v. State, supra. The orderly and full form is to put each count into one paragraph, having a separate commencement (not caption), and, as a rule, any count from which the commencement is omitted is therefore bad. 1 Bishop, Cr. Proc. (2d Ed.) § 429.

However, defendant's objection to the second count, appearing on the face thereof and going to the sufficiency of the formal allegation of the charging authority, was more properly matter for demurrer, and it was in the unrevisable discretion of the trial court to overrule the motion and put the defendant to his demurrer. Johnson v. State, 134 Ala. 54, 32 So. 724.

Defendant and deceased had been neighbors up to the time of the fatal difficulty. Deceased was killed in the road near the house in which defendant lived. Defendant's plea was that he took no part in the killing of deceased, or, in the alternative, that he acted in the excusable defense of his brother, jointly indicted with him. Evidence tended to show that, about dark, defendant or his brother had killed a dog belonging to deceased by shooting him with a gun, and that deceased, hearing the shooting, armed himself and went to the scene. Evidence for the state tended to show that defendant and his brother lay in wait for deceased, and opened fire upon him from opposite sides of the road, inflicting a number of mortal wounds. For the defendant the theory was that deceased started the difficulty by opening fire on defendant's brother. We are unable to say that the trial court erred in excluding evidence-which defendant proposed to elicit from the state's witness Elton Grice on cross-examination-that the dog was vicious. If the fact that deceased's dog was vicious may have tended to show that defendant or his brother were not at fault in shooting the dog, still that fact did not tend to show that they were free from fault in the immediate circumstances of the rencounter which came afterwards, nor did it shed light upon any legal constituent of self-defense. It was too remote. Rogers v. State, 117 Ala. 192, 23 So. 82.

A revolver was found near the body of deceased as it lay in the road. The cartridge in one chamber of the revolver had been discharged. May, a witness for the prosecution, testified that he was familiar with such things, that he had used pistols and shells a good deal, and that the shell in the empty chamber and the barrel of the revolver showed that it had not been discharged recently. The relevancy of this testimony is patent. Further objection was taken on the ground that the witness was not shown to be expert. A witness may have expert knowledge of some of the more ordinary affairs of...

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9 cases
  • Long v. State
    • United States
    • United States State Supreme Court of Mississippi
    • May 9, 1932
  • Ingle v. State
    • United States
    • Alabama Court of Criminal Appeals
    • June 8, 1982
    ...cited as authority in McElroy do not involve a narration of past events. Dailey v. State, 233 Ala. 384, 171 So. 729; Pynes v. State, 207 Ala. 395, 92 So. 663 (1922); Cameron v. State, 49 Ala.App. 482, 273 So.2d 242 (1972), cert. denied, 290 Ala. 363, 273 So.2d 248 (1973), involve weapons ta......
  • Ellison v. State
    • United States
    • Alabama Court of Criminal Appeals
    • April 22, 1975
    ...concludes 'against the peace and dignity of the State of Alabama,' such language need not appear in each count thereof. Pynes v. State, 207 Ala. 395, 92 So. 663, and authorities therein cited. Volume 12, Alabama Digest, Indictment and Information, Opinion extended, application overruled. Al......
  • Peterson v. State
    • United States
    • Alabama Court of Appeals
    • June 4, 1946
    ...148 So. 160. The case of Pynes v. State, 207 Ala. 395, 92 So. 663, relied upon by appellant in brief is not an authority in point. In the Pynes case the question propounded to the accused on direct examination and offended the rule against calling for an answer from a witness that would be ......
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