Thomas v. State

Citation124 Ala. 48,27 So. 315
PartiesTHOMAS v. STATE.
Decision Date01 February 1900
CourtSupreme Court of Alabama

Appeal from city court of Montgomery; A. D. Sayre, Judge.

Daniel Thomas was jointly indicted with Dave Williams for the murder of Albert Harris. On the joint trial of the defendants there was a mistrial as to Dave Williams, and the defendant Daniel Thomas was convicted of murder in the second degree, and sentenced to the penitentiary for ten years, and appeals. Reversed.

On July 27, 1899, the appellant, Daniel Thomas, together with his co-defendant, Dave Williams, was arraigned and pleaded "Not guilty," and the trial of the cause was set for August 15, 1899; and it was ordered by the court "that seventy-five jurors, including the regular jurors summoned for the week in which this cause is set for trial be summoned by the sheriff for the trial of this cause, and that a list of the names of the seventy-five jurors, together with a copy of the indictment, be served upon each of the defendants forthwith." The record entry then recites "that the names of the special jurors were drawn from the jury box in open court by the presiding judge in the presence of said defendants." On August 15, 1899, the day fixed for the trial of this cause, the case was continued until the following day, and was continued each succeeding day until the 18th day of August, 1899, when the trial was had. Before entering upon the trial the defendant Daniel Thomas made a motion to quash the venire upon several grounds, which may be summarized as follows: (1) The defendant was not served by the sheriff with a list of the names of all the jurors summoned to serve in this court for the week in which the trial of this cause was set, and was not served with a list showing which were the jurors summoned for the week set for the trial of the cause. (2) The return of the sheriff on the venire of jurors drawn for the week of the court at which the trial of this cause was set shows that S. F. Cooker was summoned, and his name was on the list of the jurors served on the defendant Daniel Thomas for the trial of this cause, when, as a matter of course, no person of the name of S. F. Cooker was summoned, nor was a person named S. F. Cooker found by the sheriff. (3) The return of the sheriff on the venire of the jurors drawn for the week of the court in which this trial was set shows that the name of J. W. King was drawn, and his name was on the list of the jurors served on the defendant Daniel Thomas, when in fact no person of the name of J. W. King was found by the sheriff, or was summoned by him to serve on the jury for said week. (4) The special jurors drawn for the trial of this cause were not drawn according to law. (5) Because, at same time the special jurors for the trial of this cause were drawn, the special jurors for the trial of several other defendants, who were separately indicted for capital felonies, were drawn; each of said other separate causes being set for the day of the same week of the court for which the trial of this cause was set. (6) The action of the court in having but one jury drawn and summoned for the trial of this cause, and for the trial of all other causes set for the same week, was based upon an act of the general assembly of Alabama approved December 11 1890, and entitled "An act to amend an act entitled an act to more effectually secure competent and well qualified jurors in the county of Montgomery, approved February 21 1887," and said act of December 11, 1890, is unconstitutional-First, because it seeks to amend or extend the provisions of a law by reference to its title only; and second, because the caption of said act does not clearly express the subject-matter thereof. In support of his motion to quash the venire the defendant introduced in evidence the list of jurors served on him. This list contained 75 jurors. Opposite 19 of the names there was written the word "Regular," and opposite the remaining there was written the word "Special." Among the persons designated as regular jurors, there were the names of S. F Cooker and J. W. King. It was admitted by the state that the return of the sheriff on the venire of the jurors drawn for the week of the court in which the trial for this cause was set shows that S. F. Cooker and J. W. King were summoned to serve as regular jurors for the week, and that no such persons as S. F. Cooker and J. W. King were served by the sheriff, and it was shown that there were no such persons in the county, but that S. S. Coker and J. G. King were served instead of the persons designated in the return. It was further admitted by the state that the facts stated in the grounds of the defendant's motion as to the drawing of the special venire for the several other causes set for the trial the same week were true. The motion to quash the venire was overruled by the court, and to this ruling the defendant duly excepted.

The defendant objected to being put upon his trial upon the same grounds as specified in his motion to quash the venire, and duly excepted to the court's overruling his objection, and being placed on trial. It is recited in the bill of exceptions that on Monday of the week of the court in which the trial of this cause was set for trial, while the regular jurors for the week were being organized, in the absence of the defendant, and without his knowledge and consent, the court excused from attendance as regular jurors six persons who were summoned for said week, and whose names were on the list of jurors served on the defendant; the minute entry of the court reciting that said jurors were excused for sufficient cause shown to the court. When the name of each of the persons so excused was drawn from the hat, and it was stated that he had been excused by the court, the defendant duly objected and excepted to such action on the part of the court. It was further stated in the bill of exceptions that, on the day before the trial of this cause, the court, without the knowledge or consent of the defendant, and in his absence, excused from attendance as jurors Sam Murrell and S. A. Lide, special jurors summoned for the trial of this cause; and said names were on the special venire served on the defendant, from which the jury for his trial was to be impaneled. It is stated that said special jurors were excused at their request, because the court was satisfied from the evidence introduced by them that they were too sick to serve on the jury. During the organization and impaneling of the jury for the trial of this cause, and when the name of each of said special jurors was called, and upon the court stating that he had excused them, the defendant duly excepted to such action on the part of the court. During the organization and impaneling of the jury for the trial of this cause, the name of one J. M. Adams was called, and the court pronounced him a competent juror, but failed to ask said Adams "if he had been a resident householder or freeholder of the county for the last preceding year." The defendant then moved the court to ask said juror such question. The court overruled the motion to ask the juror "if he had for the past twelve months been a resident citizen of the county," and, upon said juror answering in the affirmative, the court again pronounced said person a competent juror, and put him upon the defendant. To this action of the court the defendant duly excepted. Similar motions and exceptions were reserved to the action of the court in reference to two other persons drawn as jurors.

The evidence in the case tended to show that on the night of October 8, 1898, Dave Williams and one Jerry Williams got into a difficulty; that Jerry Williams called to Albert Harris, the deceased, to bring him his pistol; that Daniel Thomas then said to Jerry Williams that he and Dave should not have any further difficulty, and, as Jerry Williams turned to avoid any further difficulty, Albert Harris said that, if he had known that Jerry was not going to shoot Dave Williams, he would have shot him himself; that, upon Daniel Thomas turning towards Albert Harris and insisting that he should go away, Albert Harris turned upon him with his right hand upon his hip pocket, and cursed him, and that thereupon one Pink Thomas, who was a few feet back of Daniel Thomas, put his gun over the shoulder of Daniel Thomas and fired upon Albert Harris, shooting him just below the heart; that immediately thereafter, as Harris turned to run, Daniel Thomas fired at him twice with a pistol, and Dave Williams also fired at Harris once with a pistol, but that none of said pistol shots took effect, and Albert Harris died from the effects of the shotgun wound. There was also evidence introduced on the part of the state that, as Dave Williams and Daniel Thomas were going home after the difficulty, Daniel Thomas said to Dave Williams, "We all shot," and Dave replied, "But the gun did the work."

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 court charges the jury that, if you believe the evidence you will find the defendant Daniel Thomas not guilty. (2) Daniel Thomas ought not to be found guilty of murder in either degree, or of manslaughter in either degree, unless the evidence in the case satisfies you beyond a reasonable doubt-First, that between Dan Thomas and Pink Thomas there was an understanding or agreement or conspiracy to take the life of Albert Harris, or to do him some bodily harm; second, that this understanding or agreement or conspiracy was made before the fatal shot was fired; third, that the fatal shot was fired in pursuance of this understanding or agreement or conspiracy, or was a natural or probable produce of such...

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