Tatum v. State

• Citation: 82 Ala. 5,2 So. 531
• Parties: TATUM v. STATE.
• Decision Date: 30 June 1887
• Court: Supreme Court of Alabama

2 So. 531

82 Ala. 5

TATUM v. STATE.

Supreme Court of Alabama

June 30, 1887

Appeal from circuit court, Monroe county. Indictment for murder.

Syllabus by the Court.

A person summoned as a juror in a capital case, who states, on his voir dire, "that he would not hang a man on circumstantial evidence, but was in favor of penitentiary punishment in such cases," (Code Ala. § 4883,) is subject to challenge for cause by the state. ^[1]

The act approved February 17, 1885, entitled "An act to more effectually secure competent and well-qualified jurors in the several counties of this state," (Acts Ala. 1884-85, pp 181-187,) by which, among other provisions, the number of peremptory challenges in capital cases is reduced from 21 to 12, is not violative of the constitutional provision (article 4, § 2) that "each law shall contain but one subject which shall be clearly expressed in its title."

A witness, testifying to a conversation had with the defendant in his field, may state the fact that he had with him a mortgage against the defendant, no attempt being made to prove its substance or contents, the paper being only incidentally referred to, and merely collateral to issues involved.

The defendant in this case, Charley Tatum, was indicted for the murder of James A. Stewart, by shooting him with a gun pleaded not guilty; was convicted of murder in the first degree; and sentenced to the penitentiary for life. On the trial, as appears from the bill of exceptions, the name of A C. Grimes being called as a juror, "he was asked by the solicitor if he had a fixed opinion against capital or penitentiary punishment;" to which he answered that he "had not, but that he would not hang a man on circumstantial evidence, but was in favor of penitentiary punishment in such cases." The juror was thereupon challenged for cause by the state, and the challenge was allowed by the court, against the objection and exception of defendant. After the defendant had peremptorily challenged 12 persons as jurors, and after 11 jurors had been excepted, the name of one Lambert was called, and he was peremptorily challenged by the defendant. The court refused to allow the challenge, holding that the defendant had already exhausted his challenges; and to this ruling the defendant excepted.

The deceased was shot and instantly killed, about 8 o'clock on an evening of November, 1885, while sitting in his store in company with C. W. McClure and Jere McGlinn. The evidence against the defendant, who lived nearly a mile from the store, was entirely circumstantial, and consisted principally of declarations made by him against the deceased, whom he accused of having cheated him, and threats to kill him if deceased attempted to take a bale of cotton which the deceased claimed under a mortgage executed to him by the defendant, while the defendant insisted that it belonged to his wife. Said McClure, who was the first witness examined by the state, "testified that on the afternoon of November 9, 1885, he went to the defendant's field with a mortgage due said Stewart. The defendant objected to anything being said about a mortgage unless the mortgage was produced or its loss shown; which objection the court sustained, but permitted the witness to state, against the objection of defendant, that he went to defendant's field with a paper; to which ruling the defendant excepted. The witness then detailed the conversation which ensued between him and the defendant relative to the debt to Stewart, and the cotton liable for it; in which the defendant, referring to a bale of cotton at "Burnt Corn," said that it belonged to his wife, and "that he would see Stewart in hell, and die, and go there himself, before he should have the bale of cotton." The witness promised to see Stewart, and return and let the defendant know what he said about waiting for the cotton; but, after seeing Stewart, he went to "Burnt Corn," and took possession of the bale of cotton, returning then to Stewart's store, where they were sitting when Stewart was killed. The witness further testified that, after the killing, there was a large gathering of the people of the neighborhood at the store, both that night and also the next morning; and he was then asked by the solicitor, "Was the defendant there?" The defendant objected to this question, "on the ground that it was not material, and because it did not appear that the defendant had heard of the killing;" and he duly excepted to the overruling of his objection, and also to the answer of the witness "that the defendant was not present, and that nearly everybody in the neighborhood was there except the defendant."

Watts & Son, Pillans, Torrey & Hanaw, and D. L. Neville, for appellant.

Thos. N. McClellan, Atty. Gen., for the State.

SOMERVILLE J.

1. The juror Grimes was...