Stewart v. State

• Decision Date: 11 June 1903
• Citation: 34 So. 818,137 Ala. 33
• Parties: STEWART v. STATE.
• Court: Alabama Supreme Court

34 So. 818

137 Ala. 33

STEWART v. STATE.

Supreme Court of Alabama

June 11, 1903

Appeal from Circuit Court, Wilcox County; John Moore, Judge.

Jim Stewart was convicted of the murder of Will Mims, and appeals. Affirmed.

The defendant objected to going to trial, and moved the court to quash the venire upon the following grounds: "1st. Because said Jim Stewart was not served with a copy of the indictment in said case, as the law required. 2d. Because said defendant was served with a purporting copy of the indictment, and differs from the original in this: In the original wherever the word 'and' occurs it is written out and in the purporting copy it is not written and spelled out, but the following sign is used--'&'--and other variances as will more fully appear by comparing the original with the purporting copy. 3d. Because Dove Duke was drawn by the jury commissioners to serve on the regular jury for this the 3d week of Fall term, 1902, of said court, and the clerk of said court issued to the sheriff of said county a command to summon Dave Duke, and one Dave Duke was summoned to serve as a regular juror for said 3d week and said Dave Duke is one of the jurors in the special venire to try said case; and said Dave Duke was not drawn, as required by law, for said 3d week of said court. 4th. Because Burrell Dulany was drawn by the jury commissioners to serve as a juror for 3d week of said court at Fall term, 1902, and the return of the sheriff on the venire for jurors for said 3d week shows that said Burrell Dulany was summoned and said Burrell Dulany was not included in the special venire served on defendant to try his case. 5th. Because one Frank Moore, Jr., was drawn and listed by the jury commissioners to serve as a petit juror for this 3d week of said court and the sheriff summoned another and different Frank Moore, Jr., to serve as a petit juror for the said 3d week of said court, and said last named Frank Moore Jr., is a minor. 6th. Because the venire in this case is same as the venire in Ben Ethridge's case set for today, but one venire was drawn for both cases, and the venire has been quashed by order of the court in the said case of Ben Ethridge."

As to the evidence introduced upon the hearing of this motion, the bill of exceptions contains the following recitals: "The defendant offered as evidence on hearing of said objection and on the hearing of the motion, the original indictment in this case, and the original venire issued by clerk for jury for 3d week of this court, and the return of the sheriff thereon, the copy of the indictment served on the defendant the list of jurors served on the defendant to try his case the original list of jurors drawn by the jury commissioners for the 3d week of said court, which was sealed up in an envelope, and delivered to the clerk of said court, and the defendant proved that Frank Moore, Jr., was a minor, under 21, on day set for trial of said case.

"The said Frank Moore, Jr., was one of the regular jurors drawn and summoned for the 3d week of said court, and when the jurors for said week were called, on Monday of said week, the said Frank Moore, Jr., was excused as a juror for said week by the court on his oath that he was under 21 years of age. The defendant then offered in evidence the entry made by the presiding judge on his trial docket, in the case of Ben Ethridge, which case was set for trial on the same day as this, (and under a local law of Wilcox county, one venire was drawn for both cases) showing the venire was quashed in Ethridge case. This entry was changed by the presiding judge the same day so as to show the objection of the defendant Ethridge to going to trial, because not served with a copy of the indictment, as required by law, was sustained, and the venire was not quashed."

There was also introduced in evidence the original papers showing the indictment and the venire. The return of the sheriff upon the venire showed that Burrell Dulany one of the jurors named on the special venire was not found. The state proved by the sheriff and the clerk that there was but one Frank Moore Jr., in said county and that he resided in Camden beat; and that there was no "Dove" Duke in said county, or in Camden beat, but that there was a "Dave" Duke, a farmer in Camden beat in said county. Upon the introduction of the evidence and the objection and motion to quash the venire, the court overruled said objection and motion, and to each of these rulings the defendant separately excepted. The evidence in the case necessary to an understanding of the decision on the present appeal is sufficiently stated in the opinion.

Upon the introduction of the evidence, the court at the request of the solicitor for the state gave to the jury the following written charges: "(1) The court charges the jury that if they find from the evidence in this case, beyond all reasonable doubt that the defendant in Wilcox county Alabama, and before the finding of this indictment, purposed killed the deceased Will Mims, after reflection, with a wickedness or depravity of heart towards said deceased, and the killing was determined on beforehand, even a moment before the fatal shooting was done, then the defendant is guilty of murder in the first degree. (2) The court charges the jury that if they believe beyond a reasonable doubt from the evidence in the case that the defendant in Wilcox county, Alabama, and before the finding of this indictment, purposely killed Will Mims by shooting him with a pistol, with a wickedness or depravity of heart toward said deceased, and the killing was determined on beforehand, and after reflection (for however short a time before the shooting was done, is immaterial) then the defendant is guilty of murder in the first degree."

The defendant separately excepted to the giving of each of these charges, and also separately excepted to the court's refusal to give each of the following charges requested by him: "(1) The court charges the jury that if they have a reasonable doubt as to the defendant's guilt, growing out of any part of the evidence, that they must find the defendant not guilty. (2) The court charges the jury that if they believe that Will Mims came back from down the church aisle in anger at defendant and went to defendant in an attacking manner and was not provoked by defendant, and the defendant struck at him with a pistol and the pistol went off and killed Mims accidentally, then the jury should acquit the defendant. (3) The jury should look at all the testimony and examine it carefully to see whether the defendant had malice, ill-will or hate toward Will Mims when the pistol fired that killed Will Mims, and they can look at what the defendant said immediately after the shooting along with all the other evidence, to see if malice was in the heart of the defendant when the pistol fired. (4) The court charges the jury that if they believe from the evidence that after the debt between Jim Stewart and Will Mims was settled and Mims went away from Jim down the aisle of the church and returned to where Jim was, in an angry manner and with his hand in his pocket, and had not been provoked by Jim after the debt was settled, and Jim hit at him with a pistol and the pistol went off and killed Will Mims, accidentally, then the jury should acquit the defendant."

The verdict as returned by the jury was in...