Sanders v. State

• Decision Date: 28 June 1902
• Citation: 134 Ala. 74,32 So. 654
• Parties: SANDERS v. STATE.
• Court: Alabama Supreme Court

32 So. 654

134 Ala. 74

SANDERS v. STATE.

Supreme Court of Alabama

June 28, 1902

Appeal from circuit court, Perry county; John Moore, Judge.

John Green Sanders was convicted of murder, and he appeals.Affirmed.

The bill of exceptions contains the following recital as to the organization of the jury for the trial of the defendant, the motions of the defendant to quash the venire, and the ruling of the court thereon: "Both sides having announced ready for trial, the court proceeded with the selection of the jury as required by the statutes.The sheriff was directed to draw one name at a time from the hat, which he did.Before the jury had been completed, and when only nine (9) jurors had been selected, the sheriff announced to the court that all the names in the hat had been drawn out of the hat.Defendant's counsel then stated to the court that the following persons, to wit, Crum Stanley, W. E. Samples, John Huff, W. Lawler, and Noll Burnett, were on the copy of the venire which was served on the defendant, and had not been drawn from the hat; and also moved the court to quash the venire because said five names had not been put in the hat and drawn therefrom.On the hearing of said motion, it was shown that each of the said five named persons were drawn by the presiding judge as special jurors in this case, and the sheriff stated to the court that neither of said five named persons were summoned to appear as jurors; that they were not found.His return on the venire also showed they were not summoned.The sheriff also stated he did not put said names in the hat to be drawn because they had not been summoned to appear as jurors.The court then refused to quash the venire to which ruling of the courtthe defendant duly excepted.Three jurors being necessary to complete the jury, the court ordered the sheriff to summon from the qualified citizens of the court six persons [that being twice the number required to complete the jury] to appear instanter as jurors.Two of the persons so summoned were accepted as jurors, the other four being challenged.This left one juror to be selected to complete the jury.The court then ordered the sheriff to summon from the qualified citizens of the county two persons that being twice the number to complete the jury, to appear instanter as jurors; one of these was selected as a juror thereby completing the jury.The defendant objected to the completion of the jury as above stated, and duly excepted to the action of the court in completing said jury."

The evidence showed that, at the time of the killing, William Mullen was road overseer in the county of Perry, and the defendant, John Green Sanders, and his brother, Luke Sanders were hands working upon said road; that on the day prior to the killing there was a difficulty between William Mullen and Luke Sanders.There was evidence on the part of the state tending to show that there was a conspiracy between the defendant, John Green Sanders, and his brother, Luke Sanders to kill William Mullen; that on the day of the killing there was a dispute between the defendant and said Mullen as to the defendant having brought water; and said dispute resulted in the defendant and Luke Sanders firing upon and killing the said Mullen.There was some conflict in the evidence as to whether the defendant, John Green Sanders, or his codefendant, Luke Sanders, fired the fatal shot.The evidence for the defendant tended to show that, at the time the shot which killed Mullen was fired, Mullen was advancing upon the defendant, and had shot him down, and that the defendant fired in self-defense.Upon the cross examination of Jack Hartley, one of the witnesses for the defendant, he was asked the following question: "Did not the defendant, on the evening of the day before the killing, go up to Mullen, and take Mullen's horse by the bridle, and say to him, 'We will settle with you to-morrow'?"The defendant objected to this question upon the ground that it called for illegal, irrelevant, and incompetent evidence, and because there was no evidence of any conspiracy between the defendant and his brother, Luke Sanders.The court overruled the objection, and the defendant duly excepted.The witness answered he did not.The state then, upon further cross-examination of said witness, asked him the following question: "Did you not so state to John Blackburn[naming the time and place]?"Witness answered he did not.Upon the introduction of John Blackburn as a witness, he testified that the witness Hartley did make such statement to him at the time and place designated.Upon the cross-examination of Charley McLaughlin, he testified that he never heard the defendant and Luke Sanders, or either of them, say that he or they would die and go to hell before they would take any more of Mullen's foolishness, and that he did not know whether he so testified as a witness on the trial before the coroner.Upon the introduction of one of the persons who was on the coroner's jury, he was asked if Charley McLaughlin, when he was examined as a witness before the coroner's jury which was impaneled to investigate the killing of Mullen, did not testify that he heard both Luke Sanders and the defendant say that they would die and go to hell before they would take any of Mullen's foolishness.The defendant objected to this question because it called for illegal and immaterial testimony, and was an attempt to impeach said witness, Charley McLaughlin, on an immaterial matter.The court overruled the objection, and the defendant duly excepted.The witness testified that the said Charley McLaughlin did make such statement upon his examination before the coroner's jury.The other rulings of the court upon the evidence, to which exceptions were reserved, are sufficiently stated in the opinion.

The court in its general charge instructed the jury as follows "If the defendant did not provoke or commence the difficulty between Mullen and himself, and the defendant was in imminent danger of losing his life, or of suffering grievous bodily harm by Mullen, and if there was no reasonable way by which he could avoid that danger, then he would have the right to kill Mullen.But if the defendant entered into the fight willingly, and fought willingly, not for his protection, but to gratify his passion by inflicting injuries on Mullen, he could not be acquitted on the plea of self-defense, even if he did not provoke or encourage the difficulty."The defendant separately excepted to this portion of the court's general charge, and also separately excepted to the court's giving, at the request of the state, the following written charge: "The court charges the jury that if they believe from the evidence, beyond all reasonable doubt, that in Perry county, Alabama, and before the finding of this indictment, John Green Sanders and Luke Sanders did unlawfully and with malice aforethought kill William Mullen by shooting him with pistols, then the defendantJohn Green Sanders is guilty as charged in the indictment."The defendant requested the court to give to the jury the following written charges, and separately excepted to the court's refusal to give each of them as asked: "(A) I charge you that, if the witness Jack Hartley has been successfully impeached by the state, it is your duty to disregard the testimony of said witness Hartley.""(5) If the jury believe the evidence in this case, they must find the defendant not...