Smith v. State

• Decision Date: 14 February 1905
• Parties: SMITH v. STATE.
• Court: Alabama Supreme Court

39 So. 329

142 Ala. 14

SMITH
v.
STATE.

Supreme Court of Alabama

February 14, 1905

Appeal from Criminal Court, Jefferson County; Daniel A. Greene, Judge.

Taylor Smith was convicted of murder, and appeals. Reversed.

The appellant, Taylor Smith, was indicted for the murder of Martin J. Conniff, was tried and convicted of murder in the second degree, and his punishment fixed at 30 years imprisonment in the penitentiary. The indictment was in the following form: "The Criminal Court of Jefferson County. The State of Alabama, Jefferson County. The grand jury of said county charge that before the finding of this indictment Taylor Smith unlawfully and with malice aforethought killed Martin J. Conniff, by hitting him or by striking him with a hatchet, or with some blunt instrument to the grand jury unknown, against the peace and dignity of the state of Alabama. H. P. Heflin, Solicitor."

On May 6, 1904, the defendant filed a plea in abatement to the indictment, containing four grounds; the first and second grounds being, in substance, that there was present during the examination of witnesses before the grand jury that returned the indictment one Jack T. Stallings as a stenographer for the grand jury, duly sworn, who was not a member of said grand jury nor an officer authorized by law to be present. The third and fourth grounds were, in substance, that all of the grand jurors who voted to return the indictment did not hear the evidence introduced upon which the indictment was found, in that one of the jurors was by reason of extreme deafness incompetent to hear and understand the evidence. The plea was duly sworn to by the defendant. The court sustained a demurrer to the plea interposed by the solicitor. Thereupon the defendant demurred to the indictment on several grounds, in substance as follows: (1) The alternative averments that deceased was killed "with some blunt instrument to the grand jury unknown" is vague, indefinite, and uncertain. (2) It does not appear whether it was intended to charge that deceased was killed by being hit or struck with a hatchet, or some blunt instrument to the grand jury unknown, or that the words "by hitting him or by striking him" refer to the averment charging the killing to have been with a hatchet. (3) For that it does not clearly appear from the averments of the indictment whether it is intended to charge that the death of the deceased was caused by being hit or struck with some blunt instrument, or by the use of said blunt instrument in some other manner. The court overruled the demurrer.

The evidence for the state tended to show that the deceased was killed by the defendant as the result of a blow on the head with a hatchet; that the defendant was a porter in a bar in the city of Birmingham, and the deceased came in and called for defendant, who was in a back room of the bar; that defendant came out, but deceased did not speak to him, and defendant returned to the room, followed by deceased, and resumed his duties, when deceased struck him with a small piece of wood, and the two engaged in a scuffle, during which defendant struck deceased on the head with a hatchet, causing his death. The evidence for the defendant tended to show that his character was good in the neighborhood where he had formerly lived, Hale county, Ala., this being shown by depositions of witnesses residing at that place; that, when deceased came in the room where defendant was working, the latter was cutting kindling with a hatchet; that deceased asked him his name and what he was doing, and defendant replied to the question, and deceased then struck him in the back with a piece of wood, and defendant ran, followed by deceased, and the latter struck him again and grabbed him, and a scuffle followed in which defendant inflicted the fatal blow. There was other evidence tending to show that the character of deceased for peace and quietude was not good, and that he was a turbulent, quarrelsome, and dangerous man. The exceptions reserved by the defendant to the admissibility of evidence are sufficiently shown in the opinion.

In the course of his argument to the jury the solicitor used the following language: "Now, as to the showings of these witnesses who were absent, but whose testimony the state admitted for the purpose of going to trial, it was not meant that we admitted its truth, but that, if witnesses were present, they would swear what was contained in the showings." The defendant objected to this part of the argument of the solicitor and moved to exclude the same from the jury, the court overruled the objection and motion, and the defendant excepted.

Upon the introduction of the evidence the defendant requested the court to give the following written charges to the jury, which the court refused to give, and he excepted: "(1) If the jury believe from the evidence that the grand jury which found the indictment in this case knew from the evidence before them the means or instrument used in producing the death of the deceased, they cannot find the defendant guilty. (2) If the jury believe from the evidence that from the evidence before it the grand jury that returned the indictment in this case knew that Martin J. Conniff, the deceased, was killed with a hatchet, then the defendant could not be convicted under the present indictment. (3) If the jury believe from the evidence that the grand jury which found the indictment in this case knew, or could have learned by the employment of reasonable diligence, the weapon or instrument used by the defendant in causing the death of Martin J. Conniff, the deceased, the defendant cannot be convicted under the present indictment. (4) If the jury believe the evidence, they will find the defendant not guilty. (5) If the jury believe the evidence, they cannot find the defendant guilty of murder in the first degree. (6) If the jury believe the evidence, they cannot find the defendant guilty of murder in the second degree. * * * (12) A reasonable doubt is a doubt for which a reason can be given. * * * (17) If the jury believe from the evidence that, at the time the defendant inflicted the fatal blow on the deceased, he was not actuated by malice, but that he acted from a suddenly aroused, adequate provocation, or that he acted in self-defense they must acquit him. * * * (19) If the jury believe from the evidence that the defendant was reasonably without fault in bringing on the fatal difficulty, and that at the time he inflicted the fatal wound on the deceased there existed a real or apparent danger, or a present, impending, imperious necessity to strike in order to save his own life or to save himself from a great bodily harm, and that there was no reasonable mode of escape by retreating or by avoiding the combat with safety, they must find the defendant not guilty. (20) If the jury believe from the evidence that the defendant was reasonably without fault in bringing on the fatal difficulty, and that at the time he inflicted the fatal wound on the deceased there existed a real or apparent danger, or a present, impending, imperious necessity to strike in order to save himself from great bodily harm, they must find the defendant not guilty."

B. M. Allen, for appellant.

Massey Wilson, Atty. Gen., for the State.

DENSON, J.

The indictment in this case was for murder in the first degree, and was returned into the court on the 23d of January, 1904. On the 20th of February, 1904, the defendant was duly and legally arraigned upon the indictment and pleaded not guilty, and the 7th day of March, 1904, was set as the day for the trial, and on that day the defendant presented for the first time a motion in writing to quash the indictment. [39 So. 332]

This motion was overruled. The defendant then filed a plea in abatement to the indictment. The averments in the plea, upon which the quashing of the indictment was prayed for, are the same as those contained in the motion to quash. A demurrer by the state to the plea was sustained, whereupon the defendant demurred to the indictment, and the demurrers were overruled. The motion, plea in abatement, and demurrer to the indictment, having been filed after the defendant had pleaded to the merits of the case, it is insisted here by the appellee, that they were filed too late, and that the court's ruling upon them should be upheld for that reason. It is undoubtedly the law that after the defendant has, upon arraignment, entered a plea of not guilty to the indictment, dilatory pleas cannot, as matter of right, be filed, and, if filed without permission of the court, the court on motion could properly strike them. Jackson's Case, 74 Ala. 26; Horton's Case, 47 Ala. 58; Davis' Case, 131 Ala. 10, 31 So. 569; Oakley's Case, 135 Ala. 15, 33 So. 23. But, the court may, in the exercise of its discretion, permit the withdrawal of the plea to the merits and allow the filing of such pleas as are contained in this record; and, while the minute entry in this case does not...