Seams v. State

• Decision Date: 12 June 1888
• Citation: 4 So. 521,84 Ala. 410
• Parties: SEAMS v. STATE.
• Court: Alabama Supreme Court

4 So. 521

84 Ala. 410

SEAMS v. STATE.

Supreme Court of Alabama

June 12, 1888

Appeal from circuit court, Tuscaloosa county; S. H. SPROTT, Judge.

Indictment for murder. Defendant, Seams, was convicted of murder in the first degree, and sentenced to be hanged. The state introduced a witness, Arthur Carpenter, and proved by him the circumstances of the killing; that while the deceased, who was the deputy-sheriff for the county of Tuscaloosa, was trying to arrest the defendant, but without any force, the defendant shot him with a gun, which wound caused his death. The witness testified that, "immediately after the shooting of the deceased, the defendant turned upon the witness, and snapped the other barrel of his gun at him; that it failed to fire, and the defendant then clubbed the gun and knocked witness down, and broke the gun by the lick; that the defendant took the barrel of the gun, and aimed another lick at the witness," but was prevented from striking him by the blow being thrown off. The defendant objected to the introduction of that part of the testimony of the witness Carpenter which referred to the defendant trying to shoot and striking, and trying to strike, the witness; but the court overruled the defendant's objection, and the defendant thereupon excepted. Among other things, the court charged the jury as follows: "That murder in the first degree is the willful, deliberate, malicious, and premeditated killing of a human being. All these qualities must co-exist to make the killing murder in the first degree. The law has declared no length of time these wicked elements shall be shown to have existed, and they may all be grouped under the phrase 'formed design;' and if the jury believe from the evidence that this 'formed design,' as above explained, existed in the mind of the defendant for but one moment before the homicide, that, in law, would be sufficient." To the giving of this part of the charge by the court the defendant excepted. The defendant then asked the following charges: (1) "That Awtrey, under the evidence under which you must try the defendant, had no right to go to the defendant's house, and take hold of the defendant, and tell him that he had come for him, or that he arrested him; and, if the evidence convinces you that he did so, he committed an assault and battery on the defendant that defendant had a right to defend his person, and to repulse an assault with force sufficient for his own protection; that he was not compelled to retreat from his own house; and that he had the right to shoot if the surroundings reasonably indicated that his life was in present danger in his own house, without fault on his part." (2) "If the jury believe the evidence, they should not convict the defendant of murder in the first degree." The court refused to give each of these charges, and the defendant separately excepted to the court's refusal. The other facts and rulings are shown by the opinion.

W. C. Fitts and S. A. M. Wood, for appellant.

T. N. McClellan, Atty. Gen., for the State.

SOMERVILLE J.

The defendant was tried and convicted of the crime of murder in the first degree for the killing of one James Awtrey, and was sentenced to be hung, in accordance with the verdict of the jury found in the case. An application was made to the trial court for a change of venue, which, after consideration, was refused, and formally overruled. This application conforms to the statute, by setting forth specifically and under oath the reason why the defendant could not have a fair and impartial trial in the county of Tuscaloosa, where the indictment was found, and was supported, in its averments of facts, by the affidavits of several disinterested witnesses. Counter-affidavits were offered, as made by a large number of citizens, who, without denying the facts stated in the application, gave their opinion that the accused could have "as fair and impartial trial in Tuscaloosa county as he could in any other county in the state." The statute provides that the refusal of such an application, after final judgment rendered by the trial court, may be reviewed and revised by this court on appeal. Code 1886, § 4485. The principles upon which the appellate court is to act, in a case of this character, like those which should guide the trial court, are very simple. As said in Posey v. State, 73 Ala. 490: "If it be shown to the reasonable satisfaction of the court that an impartial trial and an unbiased verdict cannot be reasonably expected the venue ought to be changed." And, in arriving at a conclusion on this subject, the court is to be governed more by the facts of the case, as proved or admitted, and legitimate inferences from them, than by mere opinions of witnesses which are unsupported by facts. Johnson v. Com., 82 Ky. 116; 1 Bish. Crim. Proc. (3d Ed.) § 71. To allow facts, and necessary inferences flowing from them, to be overturned by the mere opinions of witnesses, expressing their belief that the defendant could obtain a fair and impartial trial in the county where the indictment as found, was observed by Chief Justice PECK in Birdsong v. State, 47 Ala. 68, would be "to make a precedent by which this great right and privilege of accused persons may be rendered almost worthless; for it will seldom happen that persons may not be found who will, and honestly too, believe, whatever may be the excitement in any given case, that, notwithstanding, the party against whom it may exist can have a fair and impartial trial. 5 Crim. Law Mag. 1884, p. 797. Such is the view of the matter which the law takes of it. It observes every precaution to cast the fullest protection around the sacred right of trial by jury,-a privilege which Sir William Blackstone has emphasized by his familiar declaration that "the liberties of England could not but subsist so long as this palladium remains sacred and inviolate." The constitution of Alabama, like that probably of every other American state, following the rule of the common law as far back as it can be traced, not only guaranties the right of trial by jury, but, as if to guard against all possible misapprehension, guaranties such trial by "an impartial jury" of the county or district in which the offense was committed, and further declares that the right "shall remain inviolate." The statute law seals this by its promise of "a fair and impartial trial," and is jealous in its details, fully provided for securing...