Savage v. State

• Decision Date: 18 January 1912
• Citation: 57 So. 469,174 Ala. 94
• Parties: SAVAGE v. STATE.
• Court: Alabama Supreme Court

57 So. 469

174 Ala. 94

SAVAGE v. STATE.

Supreme Court of Alabama

January 18, 1912

Appeal from Circuit Court, Wilcox County; B. M. Miller, Judge.

Frank Savage was convicted of murder, and he appeals. Affirmed.

The following charges were refused to the defendant: (8) "The court charges the jury that they must have not only justifying reasons for a conclusion of guilt--not only must they be able to say upon reason that the defendant is guilty--but this conclusion must press itself upon the minds of the jury with such convincing clearness and force that they are unable to find in the whole evidence any reason for a contrary conclusion." (19) "The court charges the jury that if the defendant was the aggressor, and the sole cause of the difficulty in which the deceased was killed, yet if you believe from the evidence that he retreated, or attempted to retreat, and was thereby placed apparently in such position as that he could not escape therefrom without endangering his life or suffering serious bodily harm, he had the right to use such force to repel this danger, even though he had to kill the deceased to do so." (27) "Flight of a defendant, although a circumstance to be considered by the jury in connection with all the other evidence, is of a weak and inconclusive character. It may not be evidence of guilt at all, if it be shown that there was any other reason for the flight than that of a sense of guilt. Flight may proceed from an unwillingness to stand the public prosecution, or from fear of the result, from an inability to explain false appearances, or from the advice of friends to avoid public excitement; and if it proceeded from any one or more of these reasons, then flight is not evidence of guilt at all." (29) "If you believe from the evidence that the defendant left the state under the advice of a friend, in whom he had confidence, that it would be best for him, then the flight of the defendant may not be evidence of his guilt."

J. F Barbour and Godbold & Van De Voort, for appellant.

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

McCLELLAN J.

The defendant was indicted for a capital offense. His trial was set for Thursday, November 10, 1910. The special venire for his trial was drawn on Friday, November 4, 1910, about 11 o'clock a. m., and a copy thereof, with the indictment was ordered to be "forthwith" served upon the defendant. The service of the copy of the venire and of the indictment was had on Thursday, November 8, 1910, about 6 o'clock p. m.

The defendant moved, in the court below, to quash the venire upon the ground that service thereof was not effected "forthwith," as required by section 32 of the jury law of 1909 (Acts Sp. Sess. 1909, p. 319). The motion was properly overruled. In section 29 of the jury law, it is provided that: "No objection can be taken to any venire of jurors except for fraud in drawing and summoning the jurors." The objection stated does not fall within the exception of the quoted provision of the jury law.

It is also provided, in section 32 of the jury law, that "any mistake in the name of any juror drawn or summoned is not sufficient ground to quash the venire or to continue the cause." Accordingly there was no ground for quashal of the venire, arising from the fact that the name "William S. Morgan" was on the venire served on the defendant whereas, "...