Towery v. State

• Decision Date: 11 May 1905
• Parties: TOWERY v. STATE.
• Court: Alabama Supreme Court

39 So. 310

143 Ala. 59

TOWERY v. STATE.

Supreme Court of Alabama

May 11, 1905

Appeal from Order of Chancellor of Northern Chancery Division William H. Simpson, Chancellor.

"To be officially reported."

Application by Dalton Towery against the state of Alabama for discharge on habeas corpus. From a judgment denying the application petitioner appeals. Affirmed.

The appellant and one Flint Towery were indicted on the charge of murder in the first degree. They applied to the judge of probate of Madison county for their discharge on habeas corpus. An order was made in that proceeding granting them bail in the sum of $2,500 each. The state appealed from that action of the judge of probate, and the appeal is pending before this court. Pending the appeal Dalton Towery, the appellant in this case, was tried; a severance having been demanded. The trial was begun in the circuit court of Madison county on February 28, 1905, and the trial was completed and the jury retired to consider their verdict about 7 o'clock p. m. on Wednesday, March 1st. The jury remained together on Wednesday night considering the case until about 10 o'clock, when they were allowed to retire to their hotel. They met again Thursday morning, and engaged in deliberation during Thursday, until 8 o'clock Thursday night, when they were excused for the night; and on Friday morning they returned and deliberated until 1 o'clock when they were excused for dinner. On Wednesday night, just before the jury retired, the foreman stated to the court that he did not think it was possible for the jury to agree, and again on Thursday night one of the jurors stated to the court that he did not think it was possible for the jury to agree. On Friday afternoon they were called before the court, and one of the jurors stated that the jury could not agree if they remained there until Christmas, two or three jurors nodding assent to this statement, and the court thereupon discharged them. The term of the court at which the trial was had expired on Saturday, the 4th day of March, at 12 o'clock p. m. On Saturday, the 4th, the appellant moved the court for his discharge, setting up the facts hereinabove mentioned, which motion the court overruled. The appellant excepted to the action of the court, and tendered his bill of exceptions to the presiding judge, which was signed on March 8th; the defendant having taken an appeal from the action of the court in denying his motion. On March 8th the appellant applied to the chancellor of the Northern chancery division for his discharge on habeas corpus, which was denied, and he was remanded to jail.

Lanier & Pride and Cooper & Foster, for appellant.

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

DENSON J.

The writ in this case was sued out under the statute, and the...