Richardson v. State, 957

CourtSupreme Court of Alabama
Writing for the CourtGARDNER, J.
Citation68 So. 57,191 Ala. 21
Docket Number957
Decision Date21 January 1915
PartiesRICHARDSON v. STATE.

68 So. 57

191 Ala. 21

RICHARDSON
v.
STATE.

No. 957

Supreme Court of Alabama

January 21, 1915


Appeal from Circuit Court, Walker County; J.J. Curtis, Judge.

Bert Richardson was convicted of manslaughter in the first degree, and he appeals. Reversed and remanded.

The motion to quash the venire was based on the ground that the names of the persons constituting the venire were not drawn according to law, and were not drawn by the officers authorized by law to draw same; that no order was made by the court commanding the sheriff to summon the persons whom the court ordered to constitute the venire in the case; the court ordered 85 persons to constitute the venire in this case, and no order was made by the court commanding the sheriff to summon 85 persons to appear in court on the day set for trial; same as to the 86 persons; 14 of said persons were absent; the copy of the indictment, together with the list of the special venire, was not served on defendant as required by law; the court made two orders, one for 85 persons constituting the venire, and one for 86 persons to constitute the venire, and no order was made commanding the sheriff to summon either 85 or 86 to appear in court on the day set for the trial of this cause. The motion for continuance is based on the absence of three named witnesses alleged to be material witnesses for defendant, on defendant's physical condition, and because defendant is not arraigned in court a sufficient number of days before the day set for trial to enable the sheriff to legally summon all the jurors constituting the venire, and as a consequence 14 were not summoned, and were not present, and because the jurors constituting the special venire were not summoned two days before the day set for the trial of this cause, and as a consequence 14 were absent. The objections to evidence sufficiently appear from the opinion.

The following charges were refused to defendant:

(7) The court charges the jury that, unless the evidence excludes every reasonable supposition except that of this defendant's guilt, you must acquit
(4) 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 shot Butts, if you believe that he shot him, or that retreat would have really increased his peril, in order for him to be justified in shooting Butts. He had the right to act on the appearance of same at the time, taken in the light of all the evidence, and he had the right to interpret the conduct of Butts in the light of any threats that the evidence proved Butts to have made against defendant. If the circumstances attending the shooting were such as to justify a reasonable mind in the belief that he 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 the right to shoot Butts 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 the jury should acquit defendant

Finch & Pennington, of Jasper, for appellant.

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

GARDNER, J.

Defendant was indicted and tried for the murder of one Monroe Butts, was convicted of murder in the second degree, and sentenced to imprisonment for the period of 25 years.

There was no error in overruling the motion to quash the venire, nor was there any error in denying the motion for continuance on the ground that some of the jurors were not served. Acts 1909, p. 312, § 17.

The other grounds for continuance were clearly matters resting largely in the sound...

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26 practice notes
  • Burns v. State, 6 Div. 186.
    • United States
    • Supreme Court of Alabama
    • June 15, 1944
    ...as required by the statute, which puts the matter beyond controversy. Zininam v. State, 186 Ala. 9, 65 So. 56; Richardson v. State, 191 Ala. 21, 68 So. 57; Garner v. State, 206 Ala. 56, 89 So. 69; Wimbush v. State, supra. An examination of the record clearly shows that the procedure followe......
  • Burns v. State, 6 Div. 965.
    • United States
    • Supreme Court of Alabama
    • October 6, 1932
    ...So. 481; Sanderson v. State, 168 Ala. 109, 53 So. 109; Jarvis v. State, 220 Ala. 501, 126 So. 127, and authorities; Richardson v. State, 191 Ala. 21, 68 So. 57; Webb v. State, 135 Ala. 36, 33 So. 487; Bryant v. State, 185 Ala. 8, 64 So. 333; Mosley v. State, 22 Ala. App. 95, 112 So. 811; Cr......
  • Smith v. State, 6 Div. 148
    • United States
    • Supreme Court of Alabama
    • June 1, 1916
    ...state, holding that the refusal of such a charge is erroneous, are hereby overruled. Dawson v. State, 71 So. 722; Richardson v. State, 191 Ala. 21, 68 So. 57. The case is affirmed. ANDERSON, C.J., and McCLELLAN, MAYFIELD, SOMERVILLE, and GARDNER, JJ., concur. SAYRE, J., not sitting. MAYFIEL......
  • Jarvis v. State, 1 Div. 527.
    • United States
    • Supreme Court of Alabama
    • January 25, 1930
    ...sound discretion of the court, dependent upon the facts. 16 C.J. pp. 457, 458, §§ 460, 829, 830, 850, 854, and 855; Richardson v. State, 191 Ala. 21, 24, 68 So. 57; Sanders v. State, 181 Ala. 35, 49, 51, 61 So. 336; Gilbert v. State, 2 Ala. App. 94, 57 So. 127. That is to say, in the exerci......
  • Request a trial to view additional results
26 cases
  • Burns v. State, 6 Div. 186.
    • United States
    • Supreme Court of Alabama
    • June 15, 1944
    ...as required by the statute, which puts the matter beyond controversy. Zininam v. State, 186 Ala. 9, 65 So. 56; Richardson v. State, 191 Ala. 21, 68 So. 57; Garner v. State, 206 Ala. 56, 89 So. 69; Wimbush v. State, supra. An examination of the record clearly shows that the procedure followe......
  • Burns v. State, 6 Div. 965.
    • United States
    • Supreme Court of Alabama
    • October 6, 1932
    ...So. 481; Sanderson v. State, 168 Ala. 109, 53 So. 109; Jarvis v. State, 220 Ala. 501, 126 So. 127, and authorities; Richardson v. State, 191 Ala. 21, 68 So. 57; Webb v. State, 135 Ala. 36, 33 So. 487; Bryant v. State, 185 Ala. 8, 64 So. 333; Mosley v. State, 22 Ala. App. 95, 112 So. 811; Cr......
  • Smith v. State, 6 Div. 148
    • United States
    • Supreme Court of Alabama
    • June 1, 1916
    ...state, holding that the refusal of such a charge is erroneous, are hereby overruled. Dawson v. State, 71 So. 722; Richardson v. State, 191 Ala. 21, 68 So. 57. The case is affirmed. ANDERSON, C.J., and McCLELLAN, MAYFIELD, SOMERVILLE, and GARDNER, JJ., concur. SAYRE, J., not sitting. MAYFIEL......
  • Jarvis v. State, 1 Div. 527.
    • United States
    • Supreme Court of Alabama
    • January 25, 1930
    ...sound discretion of the court, dependent upon the facts. 16 C.J. pp. 457, 458, §§ 460, 829, 830, 850, 854, and 855; Richardson v. State, 191 Ala. 21, 24, 68 So. 57; Sanders v. State, 181 Ala. 35, 49, 51, 61 So. 336; Gilbert v. State, 2 Ala. App. 94, 57 So. 127. That is to say, in the exerci......
  • Request a trial to view additional results

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