O'Rear v. State

• Decision Date: 30 June 1914
• Docket Number: 788
• Citation: 188 Ala. 71,66 So. 81
• Parties: O'REAR v. STATE.
• Court: Alabama Supreme Court

66 So. 81

188 Ala. 71

O'REAR v. STATE.

No. 788

Supreme Court of Alabama

June 30, 1914

Appeal from Circuit Court, Cullman County; D.W. Speake, Judge.

Will O'Rear was convicted of murder in the second degree, and he appeals. Reversed and remanded.

Of the 89 special veniremen who answered at the trial 4 were excused for cause shown, and the remaining 85 being held competent jurors, were placed on a list a copy of which was duly served on defendant. Thereafter the court allowed the state, over the seasonable objection of defendant, to challenge 4 of the veniremen thus listed because of their disbelief in capital punishment, or of conviction on circumstantial evidence, and these 4 veniremen were excused by the court because of such disbelief, and defendant duly excepted. Defendant's evidence tended to make out a case of self-defense, and tended to show that at the time he shot and killed deceased defendant was in actual and imminent peril of his life.

The trial court at the request of the state gave the following charge:

(1) Self-defense cannot be set up in this case by defendant if you find that the facts were not such as to warrant defendant in the reasonable belief that he was in imminent peril; and, if you are convinced that defendant did not entertain the honest belief that he was in imminent peril at the time of the difficulty, the defendant cannot plead self-defense in this case.

The following charge was refused to defendant:

(5) It is not necessary under the evidence in this case that defendant should have been actually in danger of death or great bodily harm at the time he killed deceased, or that retreating would have really increased his peril in order for him to have been justified in shooting deceased; he had the right to act on the appearance of things. If the circumstances attending the killing are such as to justify a reasonable belief that defendant was in danger of great bodily harm or death, and that he could not have retreated without adding to his peril, and he honestly believed such to be the case, then he had a right to shoot deceased in his own defense; although, as a matter of fact, he was not in actual danger, and retreat would not have endangered his personal safety. And if the jury believe that defendant acted under such conditions and circumstances as above set out, the burden of showing that he was not free from fault in bringing on the difficulty is on the state, and, if not shown, they should acquit defendant.

Brown &amp Griffith, of Cullman, for appellant.

R.C Brickell, Atty. Gen., and T.H. Seay, Asst. Atty. Gen., for the State.

SOMERVILLE J.

While the new jury law supersedes all former laws regulating the organization of juries (Special Sess.Acts 1909, p. 305, § 32), and prescribe certain qualifications for the persons whose names are to be placed on the jury roll and in the jury box (section 11), nevertheless, it does not undertake to declare who are competent persons for the trial of particular cases, and does not, in this respect, change pre-existing law.

A person who will not inflict the death penalty upon any evidence, or upon circumstantial evidence alone, is not a competent and qualified juror in a first degree murder case and it is the power and duty of the court, of its own motion, to reject such a venireman. Griffin v. State, 90 Ala. 596, 599, 8 So. 670, and cases cited.

Section 32 of the jury law (page 319) provides:

"On the day set for the trial, if the cause is ready for trial, the court must inquire into and, pass upon the qualifications of all the persons who appear in

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