Scott v. State

• Decision Date: 15 May 1902
• Citation: 133 Ala. 112,32 So. 623
• Parties: SCOTT v. STATE. [1]
• Court: Alabama Supreme Court

32 So. 623

133 Ala. 112

SCOTT v. STATE. ^[1]

Supreme Court of Alabama

May 15, 1902

Appeal from circuit court, Sumter county; S. H. Sprott, Judge.

Will Scott was convicted of manslaughter, and appeals. Affirmed.

The appellant, Will Scott, was indicted for the murder of Robert H. Seymour by shooting him with a pistol, was convicted of manslaughter in the first degree and sentenced to five years in the penitentiary.

The bill of exceptions contains the following recital in reference to the organization of the jury: "During the organization of the jury Steve Smith was called as a juror. The court having duly examined him as a juror touching his qualification as such decided and so announced that he was a competent juror. The solicitor by leave of the court before passing on said juror, asked said Smith if he was on defendant's bond for his appearance in this cause, and said Smith answered that he was, and the solicitor asked said Smith if he was on the grand jury when an indictment for attempt to murder was found against the defendant for the same act with which defendant is now charged with murder; to which question the said Smith answered that he was. Thereupon the court of its own motion, against the objection of the defendant, excused the said Smith as a juror and directed him to stand aside. To the action of the court in excusing said Smith and directing him to stand aside the defendant then and there duly excepted."

The state introduced evidence tending to show that the defendant was guilty as charged in the indictment. The evidence for the defendant tended to show that the fatal shot was fired in self-defense. There was evidence introduced on the part of the defendant tending to show that he was a man of good character.

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) The court charges the jury that if they believe from all the evidence that the defendant was reasonably free from fault in bringing on the difficulty, it cannot be said that he was responsible for bringing on the difficulty." "(8) I charge the jury that under the evidence in this case the accused cannot be deprived of the right of self-defense under the charge of murder in the indictment, even though the proof shows that the accused was in fault in bringing on the difficulty, unless it be further shown that he intended to bring it on, and to bring it on with felonious intent." "(W) The court charges the jury that if they find from the evidence that the defendant is a man of good character they may consider that character in connection with the other evidence in the case in determining his guilt, and it may generate a reasonable doubt of his guilt." "(K) The court charges the jury that if the defendant acted in self-defense in the difficulty at the beginning, and even though he might have renewed it after the deceased retreated yet if they believe that the defendant did not realize that the deceased had abandoned the difficulty, then they must acquit the defendant."

W. K Smith and J. J. Altman, for appellant.

Chas. G. Brown, Atty. Gen., and Sam'l Will John, for the State.

HARALSON J.

1. There was no error in the court, of its own motion, excusing the juror, Steve Smith, from sitting on the jury, and in ordering him to stand aside. He showed on his examination, touching his qualifications, that he was on the grand jury when an indictment for an assault with intent to murder deceased, was found against defendant for the same act with which he is now charged with murder, and was on defendant's bail bond for his appearance in this case.

It is well settled, that the enumerated causes for challenge in the Code, are not exclusive of all others, and of the discretionary power of the court to set aside any one summoned as a juror, who, for any cause, appears to be unfit to serve as such. The rule is well stated by this court to be, that "it is the duty of the court, when it shall appear satisfactorily that any person called as a juror has not the requisite qualifications of integrity, impartiality, or intelligence, at any time before he has been elected by the state and defendant, to reject him. The state certainly has no interest, and the defendant has no right to introduce into the jury-box unfit persons. It is the duty of the court to guard against their introduction." Smith v. State, 55 Ala. 1, 10; State v. Marshall, 8 Ala. 302; Long v. State, 86 Ala. 36, 40, 5 So. 443. So it has been held that a person who, as in this case, is bail for the defendant's appearance to answer the charge against him, is not competent to serve as a juror on his trial. Brazleton v. State, 66 Ala. 97.

The case of Bell v. State, 115 Ala. 25, 22 So. 526, relied on by defendant's counsel, is not opposed to the principle above announced. There, the juror was not an unfit person, for any reason appearing, but was merely a witness in the case for the defendant, which fact did not disqualify, or render him incompetent, to serve. It subjected him to challenge, under the statute, by either party, but for which cause, the court could not, of its own motion, set him aside.

The other cases referred to by counsel are alike inapplicable.

2. There was nothing of which the defendant can complain, that the court with the jury, the defendant, officers of court and attorneys, repaired from the courtroom in the second story of the courthouse, where the trial was being conducted, to the sheriff's office on the...