Stewart v. State

• Decision Date: 15 February 1921
• Docket Number: 6 Div. 773
• Parties: STEWART v. STATE.
• Court: Alabama Court of Appeals

89 So. 391

18 Ala.App. 92

STEWART v. STATE.

6 Div. 773

Court of Appeals of Alabama

February 15, 1921

Rehearing Denied April 5, 1921

Appeal from Circuit Court, Jefferson County; J.C.B. Gwin, Judge.

William E. Stewart was convicted of murder in the second degree, and he appeals. Reversed and remanded on rehearing.

Certiorari denied, 89 So. 395.

Goodwyn & Ross, of Bessemer, for appellant.

J.Q. Smith, Atty. Gen., and Lamar Field, Asst Atty. Gen., for the State.

MERRITT J.

The appellant, under an indictment charging him with the murder of one Henry Popee, was convicted of murder in the second degree in the Bessemer division of the circuit court of Jefferson county, Ala., and sentenced to the penitentiary for a term of 10 years. The record of the organization of the juries recites that the judge drew from the jury box 100 names which should constitute the special venire for the trial of capital cases set for the week beginning June 7 1920. On the 25th day of May, 1920, the defendant, being arraigned, pleaded not guilty. Monday, June 7, 1920, was set as a day for his trial, and the sheriff ordered to serve a copy of the indictment and a copy of the venire drawn for the week of June 7, 1920, on the defendant. The record further discloses that on June 7th, the solicitor and the defendant being present in court, the case was passed to June 9th, and on this latter date passed to June 10, 1920, at which time trial was begun, but before entering upon the trial the defendant filed a motion objecting to being placed on trial and moved the court to quash the venire, both the objection and motion being incorporated together. The objections and motion are asserted on the propositions that on June 7, 1920 the court excused a number of the special venire for one cause and another, and that under Acts of 1919, p. 1041, this could only have been done "if the case is ready for trial," and on the further ground that the court summoned no regular venire and completed the same by a special order for an additional number to constitute a special venire for the trial of the case as required by Acts 1919, p. 1041, but drew only a special venire. There is nothing to indicate that the case was not ready for trial on the day set therefor, viz. June 7th, and the fact that jurors were on this date excused, there being no question raised as to the rightfulness of the court in excusing them, can avail the defendant nothing. Code, §§ 7279 and 7280, irrespective of the act of 1919, gives the court the right to excuse from service any person summoned as a juror if he is disqualified or exempt or for any other reasonable or proper cause, to be determined by the court. The special venire was for 100 persons, and, eliminating those not served and those excused, there still remained 60 names from which to select the jury to try the defendant. The number not being reduced below 30, the defendant had no legal cause of complaint. Cormack v. State, 191 Ala. 1, 67 So. 989; Wright v. State, 15 Ala.App. 91, 72 So. 564; Vaughn v. State, 17 Ala.App. 383, 84 So. 879.

Besides, there was no contention that there was any fraud in the drawing or summoning of the jury. The evidence for the state tended to show that the deceased, Popee, was found dead a short distance from the highway, with a gunshot wound in the head, and that the defendant, Stewart, and one Kendrick entered into a conspiracy to kill the deceased.

The evidence for the defendant tended to show that the killing was in self-defense.

It was competent for the state to show the condition of the deceased when found, as tending to show when and how he came to his death, and if the answer was objectionable to the defendant he should have moved to exclude it, which was not done in this instance. The state sought to show by several witnesses that the defendant, together with Kendrick, who was also under indictment for this killing, had made confessions and objections were interposed on the ground that the corpus delicti had not been proven. Witnesses who examined the body of the deceased stated that it was about 100 yards from the road in some bushes, and that it had gunshot wounds in the back of the head.

The corpus delicti may be proven by circumstances from which the jury might reasonably infer that the offense had been committed. Truetts Case, 10 Ala.App. 108, 64 So. 529; Pappemburg Case, 10 Ala.App. 224, 65 So. 418; Hunt Case, 135 Ala. 1, 33 So. 329.

There was no error in permitting the witness Weed to testify that in a certain conversation with the defendant Stewart a day or two after the body of deceased was found, when deceased's name was mentioned, Stewart's countenance changed. Hainsworth v. State, 136 Ala. 13, 34 So. 203; Parrish v. State, 139 Ala. 44, 36 So. 1012; Thornton v. State, 113 Ala. 43, 21 So. 356, 59 Am.St.Rep. 97.

The bill of exceptions recites that it was agreed between the state and each defendant that both defendants be tried together, and that all rulings made by the court apply to both cases. It was therefore competent to show the confessions made by the defendant Kendrick to the witness Weed, when told that Henry Popee was found dead, that he stated "if he was dead, his family would be better off." Besides there was some evidence tending to show a conspiracy on the part of Kendrick and the defendant, Stewart, to commit the crime.

The testimony tended to show that just prior to the time deceased is alleged to have been killed he, with his son, was in deceased's wagon at the blacksmith shop of one Russell. What, if anything, was done there in reference to unloading or fixing the wagon was competent as tending to show the opportunity of Russell to see what was in the wagon or on the seat thereof, to refute the contention of the defendants that deceased had a gun with him in the wagon and attempted to use it at the time he was killed.

One of the ways enumerated for impeaching a witness is to show that he has made contradictory statements, and it was clearly within the bounds of this rule to show that the witness Johnnie Popee, son of deceased, and who was with deceased at the time of the killing, had at other times and on other occasions made statements different from his testimony as given at this time. In the face of the many and varied objections to this testimony, the witness stated himself that he had told at other times how the killing occurred, which was variant from that...