Smith v. State
| Decision Date | 20 December 1889 |
| Citation | 7 So. 52,88 Ala. 73 |
| Parties | SMITH v. STATE. |
| Court | Alabama Supreme Court |
Appeal from criminal court, Jefferson county; S.E. GREENE, Judge.
Henry Smith was indicted, jointly with Joe Gill, for the murder of J. D. Connelly, by shooting him with a pistol; and, being tried separately, was convicted of murder in the first degree, and sentenced to death. No objection was raised in the court below either to the indictment or to the jury, and there was no motion in arrest of judgment. The testimony adduced on the trial, as shown by the bill of exceptions showed that the homicide occurred on the evening of January 17, 1888, at the house of one Mary Goodwin, where the deceased and one John Spears were sitting by the fire, when the defendant and Joe Gill came in. Spears testified, on the part of the prosecution, that he shook hands with the defendant and Gill when they came in, but he and Gill soon became involved in a slight altercation, when Gill called out, "Shoot him, Henry;" that the defendant thereupon drew his pistol, but Mary Goodwin rushed in between them; that the defendant immediately fired, the ball striking witness in the right hip; that the defendant then turned towards the deceased, who threw up his hands, saying "Don't shoot me, Henry, I have done you no harm, nor said any;" that the defendant then fired again, shooting the deceased in the breast, and a third time as the deceased fell from his chair, striking him in the thigh; that he (witness) immediately ran out of the house, and the defendant shot at him again when he had gotten about 30 yards distant. The defendant objected to the witness testifying that defendant shot at him after Connelly fell, and while pursuing him outside of the house. The court overruled this objection of the defendant, and he thereupon excepted. A similar objection was made and overruled to a part of the testimony of Mary Goodwin, and an exception was duly reserved. The defendant, testifying in his own behalf, stated that "Spears first advanced upon Gill with a knife making threatening gestures; that Gill called out, 'Shoot him Henry, he is going to kill me,' and he (defendant) immediately fired at Spears, who at once ran out of the door that, as he turned to watch Spears, he discovered deceased within three or four feet of him, advancing on him with a drawn axe; that he then fired at Connelly, who at once fell; that he then leaped out of the door, fearing an attack from Spears, and remained out a few minutes, then returned to the house, and left in a short time in company with Gill." The defendant offered in evidence "a showing which had been admitted by the state, subject to legal exceptions," as to the testimony which W. Edwards and others, if present, would give relative to the character of said Connelly, Spears and Mary Goodwin. The prosecution objected to the admission of a part of the statement, which was in these words: "That Mary Goodwin is a woman of no chastity, bad, and dissolute; that she kept a house of ill-fame at the time of the shooting; that she and Spears were living together at the time of the killing; and that Spears had deserted his family, and had taken up his abode with her." The court sustained the objection, excluded the evidence, and the defendant duly excepted. The defendant requested the following charges in writing, and duly excepted to the refusal of each: (1) If the jury believe from the evidence that there was a general row, fuss, or melee at the house of Mary Goodwin, and that the defendant, deceased, Gill, Spears, and Mary Goodwin all engaged in mutual combat, they cannot convict the defendant of murder in any degree." (2) "If the jury believe from the evidence that the deceased was of a violent and blood-thirsty character, they are to take such evidence into consideration in determining the degree of the defendant's guilt, provided they find him guilty."
W. L. Martin, Atty. Gen., for the State.
Questions affecting the drawing and summoning of the jury which tried the defendant in this cause have been pressed upon our consideration. No objection was raised on either of these grounds in the trial court, and the record fails to show an error or irregularity in the matters complained of. "Act to expedite the trial of capital cases in Jefferson county," approved February 11, 1889, (Sess. Acts, 324.) We cannot presume error in the matter of drawing the petit juries for the courts, or for the different weeks of the term, nor that the sheriff failed in diligence in summoning the persons drawn as jurors. Public officers are presumed to act faithfully in the discharge of their official duties, and whoever complains of any irregularity, unless it be the omission of some duty which should, and yet does not, appear of record, takes upon himself the burden of proving the irregularity. Guesnard v. Railroad Co., 76 Ala. 453; 3 Brick. Dig. p. 264, §§ 163-165; Phillips v. State, 68 Ala. 469.
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