Tanner v. State

• Decision Date: 26 June 1891
• Citation: 92 Ala. 1,9 So. 613
• Parties: TANNER v. STATE.
• Court: Alabama Supreme Court

9 So. 613

92 Ala. 1

TANNER v. STATE.

Supreme Court of Alabama

June 26, 1891

Appeal from circuit court, Cherokee county; JOHN B. TALLY, Judge.

Bill Tanner was jointly indicted with William and James Smith for an assault with intent to murder one Larkin Reynolds and Bill Johnson. He was convicted and appeals. Affirmed.

MCCLELLAN J., dissenting.

The indictment contained two counts. In the first court the assault was alleged as committed against Reynolds, and in the second as against Johnson. The defendant moved to quash the indictment on the ground of misjoinder, and that each count of the indictment charged separate and distinct offenses. This motion was overruled by the court, and the defendant demurred to the indictment on the same grounds. The court overruled the demurrer, and thereupon the defendant pleaded in abatement the same reasons which were stated in the motion to quash. When the cause was called, the state, over the objection of defendants, obtained a severance as to the defendant Tanner. The testimony for the state tended to show that in August, 1890, the defendant Tanner and William and James Smith got into an altercation with Reynolds and Johnson; that Reynolds ran up the steps, and that Johnson ran in another direction, and that as they ran shots were fired by one of the three defendants in the original indictment and rocks were thrown by one or more of them; that Reynolds was struck by one of the pistol shots, and Johnson was hit by one of the rocks; that defendant Tanner was seen to throw a rock at Johnson, but there was no positive evidence as to who fired the pistol, although he had one in his possession. The testimony for the defendant tended to show that he neither threw rocks nor fired a pistol. The defendant requested the court to give the following written charges, which were refused: "(1) Before the defendant can be convicted of any offense in this case the jury must be satisfied beyond a reasonable doubt that both he and the said Jim Smith fired their pistols at the said Bill Johnson, and that the said Bill Johnson was within range of said pistol shots at the time they were fired. (2) If Jim Smith alone fired his pistol either once or twice at Bill Johnson, and no one else fired a pistol at him, then this defendant cannot be convicted of any offense under the indictment in this case. (3) If the jury have a reasonable doubt as to whether the defendant fired his pistol at or towards the said Bill Johnson, they must find the defendant not guilty. (4) If there is probable cause for believing that the said Bill Johnson was assaulted with but one pistol the jury cannot find the defendant guilty. (5) Unless the jury is satisfied beyond a reasonable doubt that the defendant Tanner, with malice aforethought, did assault the said Bill Johnson with a pistol, they must find the defendant not guilty. (6) If the jury believe from the evidence that the only assault made by the defendant Tanner upon Bill Johnson was made with a rock, they cannot find the defendant guilty. (7) Unless the jury are satisfied beyond a reasonable doubt that Bill Johnson was assaulted with pistols, and not with one pistol alone, they cannot find the defendant guilty. (8) The defendant cannot be convicted of the offense charged in the indictment unless the jury are satisfied beyond a reasonable doubt that the offense was committed with malice, and with more than one pistol. (9) If the jury believe the evidence in the case, they must find the defendant not guilty." The tenth charge appears in the opinion.

Benj. F. Pope, for appellants.

Wm. L. Martin, Atty., Gen., for the State.

STONE C.J.

The number of grand jurors in Cherokee county is limited to 15. No greater number can be drawn for any one term. Acts 1878-79, p. 204. Every one of the said number drawn to serve at the December term, 1890, was summoned by the sheriff. When, at the opening of the court for said county, the venire was called, all appeared save two. Their places were supplied in statutory form, and the record shows that the court determined to have a grand jury of 15 persons, namely, and remaining 13 embraced in the venire and 2 additional ones, L. D. Griffitts and Henry McElrath. The court then organized the grand jury, composed of 13 of the original venire, and the 2 additional ones, summoned and selected to complete the jury of 15 persons. The record then affirms that B. F. Wood, one of the original 15, was appointed and sworn as foreman. The record then proceeds to give the names of the grand jurors who "were duly impaneled, sworn, and charged according to law as grand jurors for the present term of this court." In this list of names so given are only 13 in addition to Wood, the appointed foreman. It will thus be seen that 15 persons were ascertained and adjudged to possess the requisite qualifications of grand jurors, and, from all appearances, were accepted and assigned to that service. And while the record sets forth 14 names as being "duly impaneled, sworn, and charged according to law," it is silent on this subject as to the remaining juror, Thomas F. Stewart. This, under ordinary interpretation of language, raises a strong implication that, without being sworn as such, the said Stewart served as a grand juror when the indictment in this case was preferred. No question was raised in the circuit court on this apparent irregularity, and it is raised here for the first time. It is at least possible that it was at most a clerical misprision, and that if the attention of the court had been called to it at any time before adjournment of the term at which the indictment was found the record would have been corrected. Our statute, however, cures the irregularity. Its language is: "No objection can be taken to an indictment *** on the ground that any member of the grand jury was not legally qualified, or that the grand jurors were not legally drawn or summoned, or on any other ground going to the formation of the grand jury, except that the jurors were not drawn in the presence of the officers designated by law." Code 1886, § 4445. The objection in this case goes "to the formation of the grand jury," and falls directly within the healing influence of the statute. We have heretofore regarded it as healing more palpable irregularities than that complained of in this case. In Roe v. State, 82 Ala. 68, 3 South. Rep. 2, the record showed that all the grand jurors were sworn except the foreman, and was silent as to him. We held that this was no ground of reversal. Floyd v. State, 30 Ala. 511; Billingslea v. State, 68 Ala. 486; Harrington v. State, 83 Ala. 9, 3 South. Rep. 425; Murphy v. State, 86 Ala. 45, 5 South. Rep. 432; Dotson v. State, 88 Ala. 208, 7 South. Rep. 259.

Nor was there anything in the demurrer for misjoinder of counts. The two offenses charged are not alone of the same family of crimes. They are identical in all that constitutes their criminality, and in the manner and measure of their punishment. State v. Coleman, 5 Port. (Ala.) 32; Johnson v. State, 29 Ala. 62; Oliver v. State, 37 Ala. 134; Cawley v. State, Id. 152; Snow v. State, 54 Ala. 138; Adams v. State, 55 Ala. 143. If, when the case or cases were developed in the testimony, it became apparent that there were two distinct, disconnected offenses, it then became the duty of the presiding judge, if moved thereto, to require the prosecution to elect on which offense a conviction would be claimed. 3 Brick. Dig. p. 268,§§ 242, 243. That course was pursued in this case.

The testimony for the prosecution tended to show that either Tanner or one of the Smiths fired a pistol at Johnson, and that one of them threw a rock at him, striking him about the back of the head. The testimony was somewhat variant as to who did these acts,-whether the one or the other. The testimony further tended to show a community of purpose or concert of action between Tanner and Jim and Bill Smith, at the time these alleged acts of violence were committed. It was admitted that Treadway, an absent witness for defendant would testify, if present, that he (witness) was present and saw the entire difficulty; that Tanner fired no pistol and took no...