Terry v. State
| Decision Date | 02 February 1899 |
| Parties | TERRY v. STATE. |
| Court | Alabama Supreme Court |
Appeal from circuit court, Coffee county; J. W. Foster, Judge.
Major Terry was convicted of murder in the first degree, and he appeals. Affirmed.
The appellant, Major Terry, was tried under an indictment which charged him with unlawfully and with malice aforethought killing "Mary Thomas by striking her with some weapon to the grand jury unknown," was convicted of murder in the first degree, and sentenced to be hung. When the cause was called for trial the appellant made application to the court for a change of venue. The grounds of this application are sufficiently stated in the opinion. Upon the hearing of the application the court overruled it, and refused to allow the change of venue, and to this ruling the defendant duly excepted. Thereupon the state announced ready, but the defendant announced that he was not ready for trial on account of the absence of several witnesses, among whom was one Dr. Grubbs; and the defendant submitted a sworn statement as to what he expected to prove by each of these witnesses and asked for an attachment for each of them. The court ordered attachments, returnable instanter, for all of the witnesses, with the exception of Dr. Grubbs. In reference to this witness it was shown that he was sick, and unable to attend court. Thereupon the court declined to issue an attachment for Dr. Grubbs, and defendant excepted to this action of the court. The court then put the state on the showing made by the defendant as to what the witness Dr Grubbs would testify, which showing the state admitted. The defendant objected to being put to trial in the absence of said witness, and moved the court for a continuance of the cause on account of his business. The court overruled the motion, declined to allow a continuance, and to this ruling the defendant duly excepted. It was shown that Mary Van Thomas had been killed; that when her body was found it was discovered that she had received a severe blow on her head fracturing her skull; and there were marks upon her throat as if she had been choked. The state introduced evidence tending to show that the defendant had inflicted the wounds upon the deceased which resulted in her death. Upon the examination of one Mrs. Crumpler, a witness for the state, she testified that she went to the house of deceased a short time after she was killed, and while there she examined her. That there was a large gash on the left side of her head, and all along the left side of her head there were bruises; "that the flesh moved, and it appeared that the skull was broken or crushed; it gave way and moved about easily." The defendant separately objected and moved to exclude the sentence quoted above, upon the grounds that it was irrelevant and immaterial evidence, and that the statements were the mere conclusion or expression of the opinion of the witness. The court overruled this motion, and the defendant duly excepted. There was no definite evidence as to what was the instrument with which the blow producing the death of the deceased was inflicted, but it was shown that the blow upon the head was sufficient to produce death. The testimony for the defendant tended to show that he was not guilty of the offense charged. He introduced evidence proving his general character for peace and quietude was good. Upon the introduction of all the evidence, the court, at the request of the solicitor for the state, gave to the jury the following written charge: "If the grand jury had proof of and knew the weapon employed whereby the deceased was killed, then it was necessary, to a valid indictment, that such weapon be named therein; but, if the weapon was unknown to the grand jury, such averment was sufficient, even if it could have been ascertained by reasonable diligence." The defendant duly excepted to the giving of this charge, and also separately excepted to the court's refusal to give each of the following charges requested by him. (1) "If the jury believe the evidence, they must acquit the defendant." (2) "If the jury believe from the evidence that the death of the deceased was produced by the combined effect of the choking and a blow struck with a weapon, they must find the defendant not guilty." (3) "If the jury believe that the defendant's character for peace and quietude is good, they must consider his character, in determining his guilt or innocence, as a circumstance in favor of his innocence, even though they believe his character for truth and veracity bad."
Chas G. Brown, Atty. Gen., for the State.
The facts averred by defendant in his application for a change of venue were: That on the day after the alleged murder with which he was charged he was given a preliminary hearing, and bound over to await the action of the grand jury....
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