Thomas v. State

• Decision Date: 05 June 1902
• Citation: 32 So. 250,133 Ala. 139
• Parties: THOMAS v. STATE.
• Court: Alabama Supreme Court

32 So. 250

133 Ala. 139

THOMAS v. STATE.

Supreme Court of Alabama

June 5, 1902

Appeal from circuit court, Elmore county; N. D. Denson, Judge.

John Thomas was convicted of murder of one White, and appeals. Affirmed.

There was evidence introduced by the state tending to show that a conspiracy existed between the defendant and several other persons for the capture and lynching of said White. After the introduction of such evidence, the state asked several different witnesses to tell what was said and done by the defendant and the others after the capture of said White, and before he was hung. The defendant separately objected to each of these questions upon the ground that such evidence was incompetent, illegal, and immaterial. The court overruled each of the objections, and the defendant duly excepted. Upon the introduction of all the evidence, 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: "(19) If the jury have a reasonable doubt as to the conclusions of the proof on any single fact, which it is necessary for the state to prove they must acquit the defendant." "(16) A reasonable is a doubt which naturally arises in the mind in considering the evidence." "(18) The proof of suspicious facts against the accused does not even require him to rebut it and the jury cannot convict on suspicious facts merely."

W. M Lackey, for appellant.

Chas. G. Brown, Atty. Gen., for the State.

DOWDELL J.

The defendant and one Tom Murphy were jointly indicted at a special term of the circuit court of Elmore county for the murder of Robert White, alias Robin White, by hanging him by the neck with a rope. The defendant Murphy was not arrested and on motion of the solicitor a severance was ordered by the court, and the defendant Thomas was tried alone. The bill of exceptions recites as follows: "Thereupon it was, before the examination of any of the jurors on their voir dire, conceded by the defendant that the following named persons, to wit, Lem Strength, John Strength, Will Still, Martin Fuller, Dave Parker, Jim Pugh, Ben Martin, Jr., Tom Duncan, and Tom Dorrough, were indicted at this special term of the court for the murder of Robert White, alias Robin White, at the same time and place that the defendant Thomas is indicted for, and that said parties are not indicted in the same indictment with defendant, but under different indictments, and that said indictments are pending in the court, and that Ben Martin, Jr., and Will Still are in custody awaiting trial at this time of this term on said indictments against them." In selecting the jury for the trial the name of W. F. Adkins was drawn as a juror, and upon examination on his voir dire it was shown that he was a second cousin to the wife of Ben Martin, Jr., who was then in custody awaiting trial under an indictment for the same offense. Against the objection of the defendant, the court allowed the state to challenge said juror for cause, to which ruling the defendant excepted. Likewise the name of W. Britt was drawn as a juror, who, on examination on his voir dire, was shown to be a second cousin to Will Still, who was then in custody awaiting trial under indictment on the same charge. Against the objection of the defendant, the court allowed the state to challenge this juror for cause, and to which ruling the defendant excepted. It is contended by counsel for the appellant that the relationship here is not named in the statute (Code 1896, § 5016) as a ground of challenge for cause. It is not questioned but that the degree of the kinship is within that specified in subdivision 4 of section 5016, but it is urged that the relationship of the juror is not with any one of the persons named in the statute, and therefore cannot be a ground of challenge for cause; the insistence being that, as the statute specifies certain persons whose relationship to the juror disqualifies and furnishes ground for challenge, it must be construed as forbidding as ground of challenge for cause the relationship of the juror to any other person. If the statute calls for such a construction, then it would follow that in the case of a joint indictment against two or more for the same offense, where a severance is demanded, which is a matter of right (Code, § 5275), the defendant on trial alone...