Simon v. State
| Decision Date | 28 November 1895 |
| Parties | SIMON v. STATE. |
| Court | Alabama Supreme Court |
Appeal from city court of Mobile; O. J. Semmes, Judge.
Alex Simon was convicted of murder, and appeals. Reversed.
The appellant was indicted and tried for the murder of one Allen Robinson; was convicted of murder in the second degree, and sentenced to the penitentiary for 50 years. In the formation of the jury for the trial of the cause, William E. Mickle Jr., was called as a juror; and after having been sworn he stated "that he was an active member of the Mobile Cadets, and attended the drills regularly, and claimed his exemption as a juror." The court held his exemption good, and the defendant duly excepted to this ruling of the court. Upon one P.J. Cauley being called to serve as a juror in said cause, the defendant objected to the said juror on the ground that on the venire served on the said prisoner the name of said juror appeared as "P. J. Cauley County," while the paper drawn from the jury box contained only "P. J. Cauley, Co., No. 8." The objection was overruled, and the defendant duly excepted. The other rulings of the court in reference to the putting of the juror Cauley upon the defendant were the same as those found in the case of Wilkinson v. State (Ala.) 17 So. 458 and it is therefore deemed unnecessary to set them out at length in this statement of facts. The testimony for the state tended to show that on December 9, 1894, while Allen Robinson, who was drunk, was being carried home by his wife and one Andrew Lang, and just as he got in front of his gate the defendant, who was on the other side of the street cursed Allen Robinson, his wife, and said Lang; that thereupon said Allen Robinson cursed the defendant, each calling the other names too opprobrious and vile to be repeated here; that the defendant, upon being cursed by the said Robinson, jerked off a picket from the fence near where he was standing, and ran across the street to where Robinson was standing, and struck him over the head, just above the forehead, knocking him to the ground; and that from the effects of this blow the said Robinson died in two days. The testimony for the defendant tended to show that the deceased commenced the quarrel by cursing him, and ran across the street after the defendant, but was afterwards carried back to his own gate by his wife, and that upon his calling him an opprobrious epithet he ran across the street, and struck him with the picket. Upon the examination of Mary Robinson, and after she had testified as to the circumstances of the killing, she further said, "My husband would have went across the street." Thereupon the court, of its own motion, stopped the witness, and said to her: "No; just state what was done." The defendant objected to this statement by the court, which objection was overruled, and the defendant duly excepted. Upon the examination of Dr. J D. Terrill, a practicing physician,-who, it was admitted, was an expert, and who was the physician in attendance upon the deceased,-he testified as to the nature of the wound inflicted by the defendant's striking the deceased in the head with the picket. In his testimony Dr. Terrill said, "The direct cause of his [deceased's] death was from the effect of the blow." The defendant objected to this testimony, and duly excepted to the court's overruling his objection. Upon the examination as witnesses of the officers who arrested the defendant, they testified that neither they, nor did any one in their presence or to their...
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