Sanders v. State

• Decision Date: 13 February 1913
• Citation: 181 Ala. 35,61 So. 336
• Parties: SANDERS v. STATE.
• Court: Alabama Supreme Court

61 So. 336

181 Ala. 35

SANDERS v. STATE.

Supreme Court of Alabama

February 13, 1913

Appeal from Circuit Court, Monroe County; John T. Lackland, Judge.

Henry Sanders was convicted of murder in the first degree, and he appeals. Reversed and remanded.

Dowdell C.J., and McClellan, J., dissenting. Mayfield, J., dissenting in part.

The bill of exceptions shows that several witnesses who had been summoned for the defendant were not present, and, in fact only one witness was present; and it was stated by counsel for defendant that the witness present was a character witness, and knew nothing of the facts of the case. On this showing the defendant based an application for continuance which was declined; and it was not shown to the court what was expected to be proved by the witness, nor where the witness resided. The court, however, granted an attachment for these witnesses, but declined to continue the case to another day of the term to await service of the process. The bill of exceptions further shows that after the jury had been selected, impaneled, and sworn, and the state was proceeding to state the case to the jury, it was discovered that one of the jurors was absent; but very soon he returned into court and thereupon the defendant moved to quash the panel, and objected to proceeding with the trial with that jury. The court then asked the juror if he had seen or talked with any one while he was away, and the juror replied that he had not seen or talked with any one, as there was nobody in the room but him. Whereupon the court declined to quash the panel, and the defendant excepted.

The witness Brantley, in answer to a question propounded by the solicitor, testified as follows: "Clinton Brantley, the man killed, was my brother; he was killed in McWilliams, at Henry Langham's store, in this county, by Henry Sanders. My brother went over to the store to arrest him for a negro wanted at Pine Hill. This man had followed a woman there; said that this woman's husband was a man they wanted at Pine Hill for killing another man. He told my brother that." In the above testimony the witness was referring to a deputy sheriff from Wilcox county. The defendant objected to the testimony on certain grounds stated, and before the defendant's objection was ruled on by the court the solicitor asked the following question: "I understood you to say that Clinton Brantley had been informed that this man was wanted for killing some one on the Southern Railway?" To which the witness replied in the affirmative. The defendant then renewed his objections on the grounds stated, and also moved the court to exclude the evidence. On the cross-examination of the same witness, he testified that the man who came to McWilliams from Pine Hill was a deputy, and not in fact searching for Henry Sanders, but was after a negro named Johnson. "I did not have any conversation with this officer from Wilcox county. It was my brother who had the conversation, and I was not present at the conversation." The defendant moved to exclude all the testimony about the witness' brother getting information from the man that he was hunting for a negro from Pine Hill, and the court replied, "I will exclude all he would say about having received information from anybody up to this time," and the defendant excepted.

The oral charge of the court excepted to was as follows: "The evidence for the state tends to show you that at a railroad station in this county, some time back, that the deceased, as the defendant was getting off the train, asked if that was he, or that the deceased had just come there on the train; that is for you to say; I don't remember. But at that gallery at that place, at that time, the quesion was asked if this was Henry Sanders, and I don't remember what reply was made; but you remember. Now, the next reply was, 'Consider yourself under arrest,' and just about that time, the evidence here tended to show, he pulled his pistol and fired the shot. Well, now, gentlemen, was that a willful, malicious, deliberate, and premeditated homicide? If so, unless mitigated in some way by the evidence offered, that would be murder in the first degree, the penalty of which would either be death, or imprisonment in the penitentiary for life. If that homicide was willful and malicious, but not deliberate and premeditated, then it would be murder in the second degree."

Witness Hughes testified that he was the constable and deputy sheriff, and was called up over the phone by a man who told him that he was following a woman, who was the wife of defendant, and that he was watching her, thinking that she would go to her man some time. "The man requested me to come to McWilliams, and told me these things, and I told Clinton Brantley that there was a man in town hunting a negro from Pine Hill, charged with murder, and I asked Clinton and Elmore Brantley to help me get him located and arrested. We looked for the negro on Sunday night, but failed to find him. I told Clinton Brantley to do the arresting and watch the woman, and that there was a reward for the arrest of this negro."

The court gave, at the request of the state, the following charge: "The court charges the jury that, when there is no reasonable cause to apprehend any worse treatment than a legal arrest would subject him to, it is the duty of a person to submit to an illegal arrest and seek redress at law." After the reading of this charge, the court remarked: "When a man is arrested, it is his duty to submit to the law and wait on the action of the law, unless the mere fact of an arrest subjects him to worse treatment than he would otherwise get."

The following charges were refused to the defendant:

(20) "I charge you that, under the facts shown by the evidence in this case, Clinton Brantley was not authorized to arrest the defendant."

(21) "I charge you that the fact that the witness Hughes told Brantley that he had been informed by a peace officer that such officer was following a negro woman whose husband had committed a felony, and that the woman had stopped at the house of defendant's relatives, did not constitute probable cause, authorizing Brantley to attempt the arrest of the defendant; and the defendant was authorized to reasonably and properly resist such attempted arrest, provided such resistance was not greatly disproportionate to his threatened injury."

(22) "I charge you that the witness Hughes was not such an officer of the law as was authorized to deputize the deceased to lawfully arrest the defendant."

(24) "I charge you that, under the evidence in this case, the state has failed to show that Clinton Brantley was legally authorized to attempt the arrest of the defendant; and that in making such attempt he was committing a trespass, which the defendant had a right to resist, provided such resistance was not greatly disproportionate to his threatened injury."

A single objection to a part of a charge involving several propositions, some of which are correct, is properly overruled.

Hybart & Hare, of Monroeville, for appellant.

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

MAYFIELD J.

The first error insisted upon is the refusal of the court to grant a continuance of the case on account of the absence of witnesses. It has been uniformly decided by this court that granting or refusing a continuance is a matter resting in the discretion of the trial court, and is not reversible on appeal.

The next assignment insisted upon is that the court erred in not laying the case over until the officers of the court had had the time to issue and return the compulsory process for the defendant's witnesses, which the court had ordered issued, because it would be "an empty mockery to grant the defendant the attachments, without giving the defendant an opportunity to reap the benefit from the order of the court granting the attachments."

The majority of the court are of the opinion that there was no error in the court's refusal to quash the panel of jurors. The juror who separated from the others was shown not to have mingled with the crowd, and not to have conversed with any one. He merely stepped into a closet, in which there was no other person. It therefore affirmatively appears that no injury resulted therefrom.

We find no reversible error in the rulings of the court admitting or rejecting testimony offered. Counsel for appellant complains of the condition of the record, and concedes that it is difficult to review the rulings on the evidence for lack of "clearcut and distinct exceptions." To this we must answer, that we can only review the record presented to us. Some of the evidence admitted against the defendant was not admissible, if prompt and proper objections had been interposed and proper exceptions reserved to the action of the court in admitting it. In some instances it does not appear that any objection was interposed to questions, yet motions were made to exclude the answers, which were responsive. A party cannot thus speculate as to whether the answer will be favorable or unfavorable, and, if the latter, then move to exclude it. Moreover, the court did subsequently exclude some of this irrelevant testimony thus admitted. For example, the court excluded all that George Brantley said as to having received information that the deputy from Wilcox was hunting for a negro from Pine Hill, Wilcox county, and all the testimony as to the woman in question being the wife of the defendant.

Some parts of the oral charge excepted to stated parts of the evidence which were undisputed and did not charge upon the effect of the evidence. The part excepted to involved more than one distinct proposition of law, and some of these propositions were correct. If we concede that...