Thayer v. State

• Decision Date: 10 July 1903
• Citation: 35 So. 406,138 Ala. 39
• Parties: THAYER v. STATE.
• Court: Alabama Supreme Court

35 So. 406

138 Ala. 39

THAYER v. STATE.

Supreme Court of Alabama

July 10, 1903

Appeal from Criminal Court, Jefferson County; Saml. E. Greene Judge.

Leonard Thayer was convicted of murder in the second degree, and he appeals. Reversed.

On September 5, 1902, the defendant was arraigned, and September 17, 1902, was set for his trial. Subsequently several other days were set for trial of the defendant, and the trial of the case was finally entered upon on December 2, 1902.

The defendant moved to quash the indictment upon the following grounds: "First. That at the time the grand jury heard the evidence and investigated this case, and before the finding of the indictment in this case, H. C. Kennard, who was not a solicitor for the state, and not a grand juror sworn according to law, nor a witness in the case, was present assisting the grand jury in taking the evidence in said cause. Second. That during the investigation of the evidence in said cause before the grand jury, and before the finding of the indictment, the grand jury permitted a person without authority of law to be and remain in the grand jury room, and to take part in discussion of the case evidence before the grand jury." Upon this motion it was shown that H. C. Kennard was a stenographer, and was in the grand jury room when the witnesses were examined, upon whose testimony the indictment against the defendant was preferred that Kennard heard the witnesses examined, and took down their testimony, which was written out on the typewriter and delivered to the solicitor by him; that before entering the grand jury room as such stenographer he was sworn as a stenographer for such grand jury. Upon this evidence the defendant overruled the defendant's motion to quash the indictment, and to this ruling the defendant duly excepted. Thereafter the defendant filed the following plea in abatement, which was duly verified by him: "Now comes the defendant and pleads and says that he ought not to further answer the indictment in this case because the grand jury that found the indictment in this case and returned the 'true bill' into open court conducted themselves, and permitted others in the grand jury room to conduct themselves, in such an unlawful and illegal manner that said indictment was found without authority of law, in this First. That said grand jury permitted one H. C. Kennard, who was not a witness in the case, nor a solicitor for the state nor a member of the grand jury, to be present at the time of the hearing of the evidence in said case, and while investigating the evidence in said case. Second. That said grand jury permitted a person not a member of said jury, and not a solicitor for the state, nor a witness in the case, to be present while said case was being investigated by them wherefore the defendant prays judgment of the court if he ought to further answer said indictment."

The bill of exceptions contains the following recital as to the evidence introduced in support of this plea and as to the demurrer interposed by the solicitor to the ruling thereof: "Thereupon defendant, in support of his plea in abatement, offered evidence that one H. C. Kennard was a stenographer before said grand jury, and was in the grand jury room when the witnesses were examined, and upon whose testimony the indictment was returned into court; that Kennard heard the witnesses examined, and took down their testimony, which was written out in longhand on a typewriter, and delivered to the solicitor by him, which he had then in court; that before entering the grand jury room as such stenographer he was sworn as a stenographer for said grand jury. To the sufficiency of this evidence the state by its solicitor demurred, and the court sustained the demurrer, and to the sustaining of this demurrer the defendant duly excepted."

The judgment entry contains no recital as to the ruling of the court upon the demurrer to the evidence. The recital of the judgment entry as to the rulings of the court on the plea in abatement is copied in the opinion.

In the organization of the jury to try the case G. E. Harrison, who was summoned as one of the special venire, was, while being examined as to his qualification as a juror asked, "Have you a fixed opinion against capital punishment?" to which he replied, "I would not hang a man except for rape or assassination." Upon the court then asking him what he called assassination, he replied: "Assassination is where a man kills another for his money, or goes to his house and kills him, or kills him at the instigation of others." The witness further stated, "would not hang a man where he kills another in a fight." Thereupon the state, by its solicitor, challenged the juror for cause, which challenge was allowed by the court against the objection and exception of the defendant.

On the trial of the case the evidence for the state tended to show that the deceased was killed by being stabbed by the defendant with a pocketknife, the blade of which was from 2 1/2 to 3 inches long; that the defendant and the deceased had quarreled in a barroom about a half or three-quarters of an hour before the fatal difficulty; that the deceased left the barroom, and upon returning hit the defendant several blows upon the head, whereupon the defendant grabbed the deceased around the neck with his left arm, and stabbed him with a knife which was in his right hand, from the effects of which wound the deceased died; that the deceased was smaller than the defendant, weighing about 145 pounds, while the defendant weighed about 175 pounds.

The evidence for the defendant tended to show that at the time of the quarrel between the defendant and the deceased, just before the fatal difficulty, a friend of both parties asked the deceased to leave the defendant alone, and spoke of the defendant as being an old man; that the deceased left the barroom, and upon returning in a few minutes he struck the defendant on the head several times, and that the defendant, in the excitement produced by such assault, stuck a knife which he had in his hands in the deceased; that he had the knife in his hands cutting tobacco or trimming his finger nails.

Charles Vallely, a witness for the state, testified that he was the officer who arrested the defendant; that on the way to prison the defendant asked him if he was going to give him bail; that the witness told the defendant he could not until he saw how badly the man was hurt; that the witness made no threats nor offered the defendant any inducement to make a statement; that the defendant said the deceased slapped him, to which the witness replied that that gave the defendant no right to stick a knife in him; that the defendant then said, "I knew what I was doing all right." The defendant moved the court to exclude the statement, "I knew what I was doing all right." The court overruled the motion, and the defendant duly excepted.

The defendant requested the court to give to the jury the following written charges, and separately excepted to the court's refusal to give each of them as asked: "(1) The fact...