Rose v. Magro, 6 Div. 468.

CourtSupreme Court of Alabama
Writing for the CourtTHOMAS, J.
Citation220 Ala. 120,124 So. 296
Decision Date24 October 1929
Docket Number6 Div. 468.
PartiesROSE v. MAGRO.

124 So. 296

220 Ala. 120

ROSE
v.
MAGRO.

6 Div. 468.

Supreme Court of Alabama

October 24, 1929


Appeal from Circuit Court, Jefferson County; Joe C. Hail, Judge.

Action for damage by Jennie Rose, as administratrix of the estate of Joe Rose, deceased, against Charlie Magro, for wrongful death of plaintiff's intestate. From a judgment for defendant, plaintiff appeals. Reversed and remanded. [124 So. 297]

W. A. Denson, of Birmingham, for appellant.

Altman & Koenig, of Birmingham, for appellee.

THOMAS, J.

The suit was civil action for homicide; the verdict was for defendant.

The plea of self-defense interposed was challenged on several grounds. Was it defective in the failure of averment of facts rather than the statements by way of conclusion? Vaughn v. Dwight Mfg. Co., 206 Ala. 552, 91 So. 77. It specifically averred that immediately before and at the time of the shooting of intestate by the defendant, the conduct of plaintiff's intestate was such as to justify a reasonably prudent person, under like circumstances, in believing his life was in danger, or that he was about to suffer grievous bodily harm at the hands of intestate, and that defendant so believed when he acted and used no more force than was reasonably necessary to prevent or escape such bodily harm at the hands of intestate. All the elements of self-defense are required to be embraced in a plea (Drummond v. Drummond, 212 Ala. 242, 102 So. 112; Kuykendall v. Edmondson, 208 Ala. 553, 94 So. 546) by the facts averred, and from which the conclusion employed follows as a matter of law (Kuykendall v. Edmondson, supra; Vaughn v. Dwight Mfg. Co., supra; Bynum v. Jones, 177 Ala. 432, 59 So. 65).

The urgent present and immediate peril, or the reasonable appearance thereof to defendant, of the existing necessity to take assailant's life as the preventive alternative must be shown; and that defendant so believed. White v. State, 209 Ala. 546, 96 So. 709; Union Indemnity Co. v. Webster, 218 Ala. 468, 118 So. 798; Drummond v. Drummond, supra. That is to say, the averment that intestate "was about to inflict" upon defendant grievous bodily harm or death is tantamount [124 So. 298] to properly averring that defendant was in present impending peril, necessitating that he act as and when he did to save himself.

The jury was selected under the provisions of sections 8610, 8662, 8663, Code 1928. Louis Pizitz Dry Goods Co. v. Cusimano, 206 Ala. 694, 91 So. 779. In Batson v. State ex rel. Davis, Sol., 216 Ala. 275, 280, 113 So. 300, 305, it is declared:

"The right of parties to test jurors on the voir dire as to their qualifications or grounds of challenge (Section 8662 Code) is secured in civil and criminal cases in Nix v Andalusia, 21 Ala. App. 439, 109 So. 182. The general rule is that in failing in a reasonable diligence in this behalf there is waiver of ground of challenge. 20 R. C. L 241; 18 L. R. A. 475; 68 L. R. A. 885; 16 C.J. 1158.
"That is to say that the effect of the adoption of Section 8662 of the Code of 1923 authorizing either party, in civil or criminal cases, to examine jurors as to their qualifications, interest, or bias that would affect the trial of the case, as in other states with like statutes, it is held that the parties in interest are charged with the duty of examining jurors on their voir dire for grounds of challenge, and, not so doing, cannot complain on motion for a new trial. Eastman v. Wight, 4 Ohio St. 156; State v. Jones, 89 S.C. 41, 71 S.E. 291, Ann. Cas. 1912D, 1298; Ryan v. Riverside [River Side & Oswego Mills] 15 R.I. 436, 8 A. 246; Stewart v. Ewbank, 3 Iowa, 191; State v. Whitesides, 49 La. Ann. 352, 21 So. 540; Arkansas Southern Railway Co. v. Loughridge, 65 Ark. 300, 45 S.W. 907; Ferrell v. State, 45 Fla. 26, 34 So. 220; Turner v. Hahn, 1 Colo. 23. The court called upon the parties to exercise their rights under the statute."

It is generally held that it is not necessary that the matter, made the subject of timely and reasonable inquiry by the court or counsel, should constitute a ground for challenge for cause. Within the limits of propriety and pertinence, the parties (having respective peremptory challenges or struck jury), within the sound discretion of the court, had the right to reasonably and timely propound questions to jurors to enable such party or his counsel to intelligently exercise that right, though the matters of which inquiry are made are not a disqualification. Such are the general authorities: Stone v. Monticello Const. Co., 135 Ky. 659, 117 S.W. 369, 40 L. R. A. (N. S.) 978, 21 Ann. Cas. 640; O'Hare v. Railroad Co., 139 Ill. 151, 28 N.E. 923; Bridge Works v. Pereira, 79 Ill.App. 90; Nat'l Bank, etc., v. Romine, 154 Mo.App. 624, 136 S.W. 21; Fowlie v. McDonald, Cutler & Co., 85 Vt. 438, 82 A. 677; Lavin v. People, 69 Ill. 303; State v. Mann, 83 Mo. 589; Iroquois Furnace Co. v. McCrea, 191 Ill. 340, 61 N.E. 79; Donovan v. People, 139 Ill. 412, 28 N.E. 964; City of Vandalia v. Seibert, 47 Ill.App. 477.

In Burgess v. Singer Mfg. Co. (Tex. Civ. App.) 30 S.W. 1110, 1111, it is declared: "In examining jurors on their voir dire, parties have the right to ask them if they are members of the order of Knights of Pythias or Odd Fellows, and the court erred in not permitting appellant's counsel to examine jurors as to such matters."

It is undoubtedly true that the course and extent of the voir dire is largely within the discretion of the court. Quinn v. Halbert, 57 Vt. 178; Fowlie v. McDonald, Cutler Co., 85 Vt. 438, 82 A. 677, 680. In this jurisdiction it has been declared that it may be the subject of inquiry whether any of the jurors were city employees, in a matter in which that municipality is or was interested. Nix v. City of Andalusia, 21 Ala. App. 439, 109 So. 182; City of Birmingham v. Lane, 210 Ala....

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29 practice notes
  • Burns v. State, 6 Div. 965.
    • United States
    • Supreme Court of Alabama
    • October 6, 1932
    ...was disclosed to the court as the basis of the request for or the purpose of an individual inquiry. Section 8662, Code; Rose v. Magro, 220 Ala. 120, 123, 124 So. 296; Alabama Clay Products Co. v. Mathews, 220 Ala. 549, 551, 126 So. 869. The excusing of jurors was within the sound discretion......
  • Sims v. Struthers, 3 Div. 760
    • United States
    • Supreme Court of Alabama
    • April 25, 1957
    ...441, 37 So.2d 753; Leath v. Smith, 240 Ala. 639, 200 So. 623; Louisville & N. R. Co. v. Davis, 236 Ala. 191, 181 So. 695; Rose v. Magro, 220 Ala. 120, 124 So. The action of the trial court in overruling the defendant's objection to [267 Ala. 84] the question asked of one of his witnesses on......
  • Ward v. State, 6 Div. 99
    • United States
    • Alabama Court of Appeals
    • December 6, 1966
    ...State, 273 Ala. 337, 139 So.2d 309; Burns v. State, 226 Ala. 117, 145 So. 436; Gholston v. State, 221 Ala. 556, 130 So. 69; Rose v. Magro, 220 Ala. 120, 124 So. 296; Smith v. State, 36 Ala.App. 624, 61 So.2d 698 (reversed on another point 258 Ala. 86, 61 So.2d 707). [44 Ala.App. 239] We are......
  • Redus v. State, 8 Div. 143.
    • United States
    • Supreme Court of Alabama
    • June 18, 1942
    ...dire examination of jurors as to qualification and the course and extent thereof is largely within the court's discretion. Rose v. Magro, 220 Ala. 120, 124 So. 296; Code 1940, T. 30, § 55, Subsection 3; Hendry v. State, 215 Ala. 635, 112 So. 212; Gholston v. State, 221 Ala. 556, 130 So. 69.......
  • Request a trial to view additional results
29 cases
  • Burns v. State, 6 Div. 965.
    • United States
    • Supreme Court of Alabama
    • October 6, 1932
    ...was disclosed to the court as the basis of the request for or the purpose of an individual inquiry. Section 8662, Code; Rose v. Magro, 220 Ala. 120, 123, 124 So. 296; Alabama Clay Products Co. v. Mathews, 220 Ala. 549, 551, 126 So. 869. The excusing of jurors was within the sound discretion......
  • Sims v. Struthers, 3 Div. 760
    • United States
    • Supreme Court of Alabama
    • April 25, 1957
    ...441, 37 So.2d 753; Leath v. Smith, 240 Ala. 639, 200 So. 623; Louisville & N. R. Co. v. Davis, 236 Ala. 191, 181 So. 695; Rose v. Magro, 220 Ala. 120, 124 So. The action of the trial court in overruling the defendant's objection to [267 Ala. 84] the question asked of one of his witnesses on......
  • Ward v. State, 6 Div. 99
    • United States
    • Alabama Court of Appeals
    • December 6, 1966
    ...State, 273 Ala. 337, 139 So.2d 309; Burns v. State, 226 Ala. 117, 145 So. 436; Gholston v. State, 221 Ala. 556, 130 So. 69; Rose v. Magro, 220 Ala. 120, 124 So. 296; Smith v. State, 36 Ala.App. 624, 61 So.2d 698 (reversed on another point 258 Ala. 86, 61 So.2d 707). [44 Ala.App. 239] We are......
  • Redus v. State, 8 Div. 143.
    • United States
    • Supreme Court of Alabama
    • June 18, 1942
    ...dire examination of jurors as to qualification and the course and extent thereof is largely within the court's discretion. Rose v. Magro, 220 Ala. 120, 124 So. 296; Code 1940, T. 30, § 55, Subsection 3; Hendry v. State, 215 Ala. 635, 112 So. 212; Gholston v. State, 221 Ala. 556, 130 So. 69.......
  • Request a trial to view additional results

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