Thomas v. State

• Decision Date: 24 January 1907
• Citation: 150 Ala. 31,43 So. 371
• Parties: THOMAS v. STATE.
• Court: Alabama Supreme Court

43 So. 371

150 Ala. 31

THOMAS v. STATE.

Supreme Court of Alabama

January 24, 1907

Rehearing Denied March 2, 1907.

Appeal from City Court of Mobile; O. J. Semmes, Judge.

Andrew Thomas was convicted of murder, and he appeals. Affirmed.

The defendant was indicted for the murder of Harriet Thomas, by shooting her with a pistol. In impaneling the jury one Owen was called to be qualified on his voir dire, and, upon being asked if he had a fixed opinion that would bias his verdict said that he had, and volunteered the statement that his opinion had been gathered from the newspaper accounts which he had read, and which opinion the talesman thought would bias his verdict. "The Court: That is not the question. The question is: Is your mind in such a condition that you can go on the jury, and hear the evidence in the case, and render your verdict alone upon the evidence, without reference to that opinion; or would the opinion that you now have have some influence on that verdict? A. I am afraid it would. It could be changed by proper evidence. The Court: The question the court asks is: Is your mind in such condition that you can lay that opinion aside and decide the case without reference to that opinion? A. Yes, sir; I think I could. Counsel for Defendant: Suppose the testimony as given on the trial were the same as that given in the newspapers would not that influence your verdict? A. Yes, sir; if it is substantially the same. The Court: Would you be governed by the newspaper report, or by the evidence? A. No, sir; I would be governed by the evidence if it were the same. The Court But would what you saw in the newspapers have any influence on your verdict--the opinion in the newspapers? A. Not the opinion, but what I read in the newspapers, if the evidence was the same. The Court: If the evidence is substantially the same as that in the newspapers, your verdict is now fixed? A. Yes, sir. The Court: Suppose the court should charge you that the evidence set out in the newspapers was not sufficient to convict, would that influence you, or would you bring in a verdict according to the evidence? A. The question with me was: If the evidence was the same as appeared in the newspaper, was my opinion fixed? I would say it was. The Court: I understand you to answer that, no matter what your opinion is, after hearing the evidence, you could be governed by the evidence alone, and try the case on that evidence? A. Yes, sir. The Court: And try it alone on the evidence? A. Yes, sir. Counsel for Defendant: But if that evidence is substantially the same as what appeared in the newspapers that would have some influence with you? A. Yes, sir." The defendant then challenged the juror for cause, but the court declined to permit that to be done, and the defendant then excepted to the action of the court, and challenged the juror peremptorily.

The evidence for the state then tended to show that on the morning of the killing defendant went to the house where deceased was, and, after seeking admittance to the room where she was and being refused, kicked at the door, and when admitted he said something to the deceased about giving him the child, or coming to an understanding with him, and, upon her refusal to do either, hit deceased, and, as she came towards him again, shoved her backward, and shot her in the breast, and as she fell to her haunches he shot again, the shot striking her in the head, from which wounds she died almost immediately. The defendant offered to show by the witness Logan that on several occasions the witness had had sexual intercourse with the deceased. Objection was sustained to the testimony, and the defendant offered and stated to the court that he would prove later, so as to render this evidence admissible, that on the night before the killing the defendant went down town to where his wife was working, and waited for her on the outside; that she came out and joined another man, and walked up the street with him, and that he knocked the other man down and took his wife on home; that after he got in the house he asked his wife what she meant by such action, and she told him that for two years she had done as she pleased, and that she was going to leave him; that for a long time prior to the killing she had had sexual intercourse with other men, and that she was going to leave him and go with this other man, and that she was going to take her child with her; that she had been doing these acts and expected to keep it up; that the morning of the killing the defendant walked into the room and asked her if she was going to give him her child, and she said, "No," and that she was going off to live with the other man. When the defendant was put on the stand, it was attempted to bring this evidence out again; but the court refused to permit it, and the defendant excepted. The evidence of the defendant tended to show that the killing was accidental. What is said in the opinion of the oral charge sufficiently sets out the charge excepted to. The action of the trial court in leaving the room during the argument of counsel is also fully stated in the opinion.

The following charges were refused to the defendant: (5) "The court charges the jury that they cannot draw any inference unfavorable to the defendant from the failure or refusal of his mother to testify on this trial." (4) "The court charges that, if the jury finds the defendant guilty, it is no more their duty under the law to hang the defendant than it is their duty under the law to sentence him to the penitentiary." (7) "The court charges the jury that there is no more moral duty resting upon the jury to hang the defendant than there is to sentence him to the penitentiary for life." (1) "The court charges the jury that they are to pay no more attention whatever to any inferences drawn by the solicitor, unless they believe beyond all reasonable doubt that the inferences so drawn are correct." (6) "The court charges the jury that they are to disregard, as entirely irrelevant to the case, any statement by the solicitor as to the commission in this county of any other crimes with which the defendant is not shown by the evidence to have been connected." (3) "The court charges the jury that this case is governed entirely by its own facts and surrounding circumstances, and in determining upon what punishment they shall inflict upon the defendant they cannot consider for any purpose the statement of the solicitor that other crimes with which it is not shown that the defendant was concerned or connected had been committed in Mobile county." (8) "The court charges the jury that they must give the defendant the full benefit of all reasonable doubts arising from any parts of the evidence." (9) "The court charges the jury that all reasonable doubts arising from any part of the evidence are to be resolved in favor of the defendant." (2) "The court charges the jury that, if they believe beyond all reasonable doubt that the defendant is guilty of murder in the first degree, they may take into consideration the fact, if they believe from the evidence that it is a fact, that the deceased, to the knowledge of the defendant, had been engaged in illicit sexual relations with other men than the defendant; but the court charges the jury that this can be considered by them only in fixing the punishment which the jury shall impose upon the defendant." (10) "The court charges the jury that they must construe every doubt in favor of the defendant." (11) "The court charges the jury that they should construe every doubt in favor of the defendant." (12) "The court charges the jury that, though they may believe from the evidence that the defendant had intended to kill his wife, yet if, between the time of forming this intent and the time of the killing, something intervened which displaced this intent and was itself the moving cause of the killing, the jury cannot find the defendant guilty of murder in the first degree." (13) "The court charges the jury that, unless they believe beyond a reasonable doubt that the killing was done in furtherance of previous threats by the defendant against the deceased, testified to by some of the witnesses, then they are to pay no attention to such previous threats whatever." (14) General affirmative charge. (16) Affirmative charge not to find guilty of any higher offense than manslaughter in first degree. (17) Affirmative instructions not to find guilty of any higher grade than murder in second degree. (18) General affirmative charge. (15) Affirmative charge not to find guilty of any higher degree than manslaughter in second degree. (30) Affirmative instruction not to find defendant guilty of any higher grade than assault with intent to murder.

The defendant was found guilty as charged, and his punishment fixed at death by hanging.

R. M. Smith and E. L. Clarkson, for appellant.

Massey Wilson, Atty. Gen., for the State.

DENSON J.

The defendant was indicted, tried and convicted of murder in the first degree; the subject of the homicide being his wife.

Unless the opinion of a venireman is of that fixed and definite character as will bias his verdict, a challenge for cause on account of fixed opinion will not lie. Under the rule in this respect, as declared in the cases of Long v. State, 86 Ala. 37, 5 So. 443, and Jarvis v. State, 138 Ala. 17, 34 So. 1025, the venireman Gayle Owen was not subject to challenge for cause. Williams' Case, 3 Stew. 454; Morea's Case, 2 Ala. 275; Frazier v. State, 23 Ohio St. 551; Smith v. Com., 7 Grat. (Va.) 593; People v. Cochran, 61 Cal. 548; Hopt v. Utah, 120 U.S. 430, 7 S.Ct. 614, 30 L.Ed. 708.

"If a husband finds his wife committing adultery and under the provocation instantly takes her life, the homicide is only manslaughter." Hooks' Case, 99...