Ryan v. State

• Decision Date: 08 February 1894
• Citation: 14 So. 766,100 Ala. 105
• Court: Alabama Supreme Court
• Parties: RYAN v. STATE.

14 So. 766

100 Ala. 105

RYAN v. STATE.

Supreme Court of Alabama

February 8, 1894

Appeal from circuit court, Walker county; James J. Banks, Judge.

Pat Ryan was indicted for murder, and appeals from a conviction of manslaughter in the first degree. Reversed.

The bill of exceptions states that the defendant moved to quash the venire on the trial of this cause. The first ground of the motion is copied in the opinion. The second ground was because, in organizing the petit juries for the second week the court excused two of the jurors summoned, on the ground that they had served on the regular petit jury in the circuit court one week during that year; and this notwithstanding their names were on the list of the jurors served upon the defendant for the trial of this cause, and the said persons in open court, waived the right to be excused. The motion to quash was overruled by the court, and the defendant excepted. The only exception reserved to the ruling of the court upon the evidence is sufficiently stated in the opinion. The defendant requested the court, among others, to give the following charge, and duly excepted to the court's refusal to give the same: (10) "If the jury convict the defendant, they may consider the fact that the defendant has been confined in jail about 18 months since the commission of the offense, in mitigation of the punishment they impose."

Coleman & Sowell, for appellant.

Wm. L Martin, Atty. Gen., for the State.

McCLELLAN J.

A motion was made to quash the special venire on the ground that the "list of jurors served on the defendant failed to show what persons had been summoned to serve as petit jurors for the second week of this term of the court, and the return of the sheriff on the venire for the second week showed that S. R. Harris and William Madison were not found and their names were on the list served on the defendant for the trial of this cause." The facts thus stated in the motion were admitted to be true. The motion was denied. If it was made before the trial was entered upon, it should have been granted. If made after the trial was entered upon, it was properly overruled. Thomas v. State, 94 Ala. 74, 10 So. 432. The bill of exceptions does not inform us at what time, with reference to the beginning of the trial, the motion was made. No presumption can be indulged in that regard which would put the lower court in error. To the contrary, all presumptions are against error, and favorable to regularity. The bill of exceptions must be construed against the appellant, where, as here, it admits of two constructions,-one leading to reversal, and the other to affirmance of the judgment below. Error must be affirmatively shown. It is not affirmatively shown here, in that it does not appear but that the motion to quash the venire was made at a time when it was the court's duty to deny it, whether inherently meritorious or not. 1 Brick. Dig. pp. 247, 251, §§ 72a, 120 et seq.; 3 Brick. Dig. p. 81, § 51; Kellar v. Taylor, 90 Ala. 289, 7 So. 907.

The evidence tended to show that defendant, deceased, and others were in defendant's room. The defendant and deceased had been drinking together, and talking. One subject of conversation was the Catholic Church, and on this subject some disputation arose between defendant and the deceased. There appears, also, to have been something in the nature of a quarrel between the parties on some other subject. All differences between defendant and deceased were apparently amicably accommodated, whereupon there was a...