Tyler v. State

• Decision Date: 01 December 1921
• Docket Number: 6 Div. 499.
• Citation: 92 So. 478,207 Ala. 129
• Parties: TYLER v. STATE.
• Court: Alabama Supreme Court

92 So. 478

207 Ala. 129

TYLER v. STATE.

6 Div. 499.

Supreme Court of Alabama

December 1, 1921

Rehearing Denied Jan. 19, 1922.

Appeal from Circuit Court, Jefferson County; J. C. B. Gwin, Judge.

Lon Tyler was convicted of murder in the first degree, and he appeals. Reversed and remanded.

See also, 89 So. 926.

Pinkney Scott, of Bessemer, for appellant.

Harwell G. Davis, Atty. Gen., and Ben G. Perry, of Bessemer, for the State.

ANDERSON C.J.

The act of 1919 (page 1039), amending certain sections of the Jury Law of 1909, does not offend so much of section 45 of the Constitution as provides that:

"No law shall be revived, amended, or the provisions thereof extended or conferred, by reference to its title only; but so much thereof as is revived, amended, extended or conferred shall be re-enacted and published at length."

The amendment here is complete and intelligible and original in form, and can be understood without reference to so much of the original act as is sought to be amended. State ex rel. Terry v. Lanier, 197 Ala. 1, 72 So. 320; State v. Rogers, 107 Ala. 444, 19 So. 909, 32 L. R. A. 520; Montgomery v. Birdsong, 126 Ala. 645, 28 So. 522.

The fact that the venire was fixed at 90 and the court drew 93 names was not an error of which the defendant can complain. The number fixed as well as the number drawn were within the minimum and maximum as fixed by law. Walker v State, 204 Ala. 474, 85 So. 787; Rudolph v. State, 172 Ala. 379, 55 So. 610.

It is next insisted that after the return as to the jurors found and present and not excused the number was reduced to 55, and that the list from which the jury was selected contained only 42 names. In other words, that the defendant was deprived of 13 names in the selection of his jury. It appears that the court for good cause excused one of said 13, and the other 12 were engaged in the trial of another cause. Section 32 of the act fixes the minimum number for the list at 30, and the list here contained 42 names. We do not think that the trial court had to postpone this case until the 12 jurors engaged in the trial of the other case got through, or in omitting for a good excuse the other juror. It has been heretofore held, when the jury law was

stricter and the construction of same more technical than at present, that when some of the veniremen were engaged upon another case the trial court could proceed without them. Dorsey v. State, 107 Ala. 160, 18 So. 199, and cases there cited. The latter part of section 32 authorizes the trial of two or more capital cases the same day and by the same venire.

We think that the testimony showed a sufficient predicate that the declarations of Alexander, the deceased, to Dr. Waldrop were made by him under a sense of impending death, when the motive for falsehood may be presumed to have been lost in the despair of life. Dr. Waldrop told him that he could not get well, but would die, and his statement showed that he believed or thought he would die. Patterson v. State, 171 Ala. 2, 54 So. 696, and cases there cited.

As a part of the res gestæ and without objection, some of the state's evidence showed that at the time of the shooting, about 3:30 p. m., the defendant was under the influence of whisky, which fact was subsequently contradicted by some of the defendant's evidence. Therefore the evidence of the Deputy Kemp that defendant was under the influence of liquor when he arrested him about 5 o'clock the same afternoon was corroborative of the state's contention as to his condition at the time of the difficulty.

Threats by the deceased against the defendant are admissible, whether communicated to the defendant or not, when there is evidence tending to show that the deceased was the aggressor or made hostile demonstrations tending to produce the honest belief on the part of the defendant at the time of the fatal act that he was in peril of life or limb or grievous bodily harm. Wilson v. State, 140 Ala. 43, 37 So. 93. The trial court erred in not letting the defendant's witness Cooper testify to threats made to him by deceased against the defendant. The witness Dock Baggett had just testified to a conversation with the deceased as to how the difficulty started and what transpired, and from which the jury could have inferred that he, and not the defendant, was the aggressor, and that the defendant was in danger of serious bodily harm. Whether this was the proper way to prove this (...