Richardson v. State

• Decision Date: 21 January 1915
• Docket Number: 957
• Citation: 68 So. 57,191 Ala. 21
• Parties: RICHARDSON v. STATE.
• Court: Alabama Supreme Court

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 &amp 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 discretion of the court, and no abuse of this discretion is shown.

At the time defendant offered proof of threats made by deceased against him there was no proof tending to show self-defense, and therefore the court below cannot be held to have committed error in sustaining the objection to the same at that stage of the trial. Rutledge v. State, 88 Ala. 85, 7 So. 335; Turner v. State, 160 Ala. 40, 49 So. 828; Robinson v. State, 155 Ala. 67, 45 So. 916; Beasley v. State, 181 Ala. 28, 61 So. 259.

The killing occurred in the streets of Cordova about midnight, and the theory of the defendant was that he acted in self-defense. Testimony was offered by the state to show a previous difficulty between the parties, down in front of the New Hotel. Witness Miller places the time at 11:30 o'clock, and the proof seems to show without dispute that the shooting of the deceased took place just after 12 o'clock; but the witness Miller subsequently states that the previous difficulty was 10 or 15 minutes before the shooting. However this may be, it appears without conflict that the fatal difficulty was not in any sense a mere continuation of the previous difficulty, and such previous difficulty, under the facts in this record, could not be said to be a part of the res gestae of the killing. The deceased left the hotel and went to the depot, and the defendant also left the hotel, and went to a stable some distance off, waked the man at the stable, and had him hitch a horse to a buggy and drive him around without giving any direction as to where to drive.

The fact that the parties had a previous difficulty was, of course, admissible. It was also admissible to show any threats made by either party at the time. Therefore that portion of the evidence which related to statements made at the time of the previous difficulty,...