Vaughn v. State

• Decision Date: 06 April 1920
• Docket Number: 6 Div. 655
• Parties: VAUGHN v. STATE.
• Court: Alabama Court of Appeals

84 So. 879

17 Ala.App. 383

VAUGHN v. STATE.

6 Div. 655

Court of Appeals of Alabama

April 6, 1920

Appeal from Circuit Court, Blount County; W.J. Martin, Judge.

Al Henry Vaughn was convicted of murder in the second degree and he appeals. Reversed and remanded.

For former report of this see Vaughan v. State, 201 Ala 472, 78 So. 378, where a statement of many of the facts are found to be set out. Matter relative to the motion to quash the venire sufficiently appear from the opinion, as do many of the exceptions to evidence. The questions to the witness Lon Wallace were as follows:

"By the State's Counsel: You remember my coming to the field where you were plowing some ten days after the shooting, don't you?"

"You remember me having this paper, don't you, and reading it over to you?"

"Do you remember me telling you that we did not want you to make any statement of anything but the truth do you?"

"Then you told me the statement was true."

Objections were interposed to each of these questions, were overruled each question answered in the affirmative, and motion made to exclude the answers.

The following charges refused to the defendant are directed to be set out:

(12) Insulting or obscene language used by the defendant, if you find such were so used, will not deprive him of his right of self-defense. Therefore, if you find from the evidence that Ake Vaughn, the father of Al Henry Vaughn, made use of any insulting or obscene language against the deceased, Dick Stevens, the fact of his having used such obscene or insulting language did not deprive Ake Vaughn of his right of self defense against an attack or threatened assault by the deceased, Dick Stevens. And if the deceased at the time of the homicide was making, or about to make, an attack on Ake Vaughn, or it reasonably appeared to the son of Ake Vaughn Al Henry Vaughn, the defendant in this case, that such an attack was being made or about to be made, viewing the case from the defendant's standpoint the defendant Al Henry Vaughn had the right to defend the person of his father from such attacks or threatened attack, and his right to do so would not be abridged by such previous use of insulting or obscene language, if such language was not used for or was not reasonably calculated to provoke, encourage, or bring on a difficulty.

(2) The law gives a person the right to use such force as may be reasonably necessary, under the circumstances by which he is surrounded, to protect himself from great bodily harm, as it does to prevent his life being taken, and this right is imputed by law to the son of a person so jeopardized. The son may justifiably use this necessary force to save his father from any felonious assault.

(6) If Ake Vaughn had no reasonable cause or ground to believe that Stevens was about to assault him in such a way or manner as to endanger his life or put him in peril of serious bodily harm until he was knocked down, he was under no duty to retreat.

(34) If at the moment the fatal shot was fired the circumstances were such that they impressed the defendant with the reasonable and honest belief that his father was in danger of losing his life or of suffering serious bodily harm, and if at that moment there did not reasonably appear to defendant a means of escape without increasing his danger, then you must find the defendant not guilty unless the state has proven beyond all reasonable doubt that either Ake Vaughn or the defendant was at fault in bringing on the difficulty.

John A. Lusk & Son and O.D. Street, all of Guntersville, and J.F. Kelton & Son, of Oneonta, for appellant.

J.Q. Smith, Atty. Gen., and Lamar Field, Asst. Atty. Gen., for the State.

SAMFORD J.

On the trial of the cause the defendant moved the court to quash the venire from which a jury was to be selected to try his case on the ground that the court had no authority to draw additional jurors, in addition to juries numbered 1 and 2, and three jurors on jury numbered 3, which the court did, confining the jurors so drawn to those living within five miles of the county seat. On the hearing of the motion, the following facts were agreed to:

"It was admitted that on Monday, immediately after the calling of the case and after the state had announced ready for trial, and defendant had been given time to prepare a showing for absent witnesses, the court having organized the petit jury, and there being 25 jurors present, the court directed the sheriff to bring into the courtroom the jury box and drew from the jury box the names of more than 18 jurors among others, and selected from such names 18 jurors who resided within five miles of the courthouse, and directed that they be summoned for attendance upon the court, and that on Tuesday before this case was called for trial the court had examined said jurors as to their qualification as jurors generally without reference to this case in particular, and had them sworn for the week, and these jurors were in attendance on the court at the time this case was called. No inquiry had been previously made as to the qualification of any jurors as to this particular case. The court here stated that it was the object and purpose of the court in drawing the special jurors on yesterday evening to obtain three full panels so that the time of the court might not be delayed in the trial of causes upon the docket for the then present week; that, if objection is made by the defendant, the names of these gentlemen drawn on yesterday evening will not be placed upon the panels or placed upon them as jurors.

"Thereupon counsel for the defendant stated that they reserved an exception to the ruling of the court requiring them to make an election or rejection or accepting jurors thus summoned.

"Thereupon the court overruled the defendant's motion to quash the venire, and to this ruling of the court the defendant then and there duly excepted, and the defendant was furnished with a list containing the jurors who were thus drawn by the court from this list. The defendant and the state alternately struck as provided by law until the jury was selected and duly impaneled, and thereupon the trial proceeded."

There are at least two reasons why the appellant's contentions are not tenable:

(1) Section 29 of the act of the Legislature (Acts 1909, p. 317) provides:

"Sec. 29. It is hereby expressly declared to be the intent of the Legislature in the enactment of this law, to make the provisions hereof in the relation to the selection, drawing, summoning or empaneling of jurors directory merely and not mandatory. The jurors selected, drawn, summoned and impaneled under the provisions of this act, whether at or earlier, or later day than required by this act, must and shall in all respects be deemed legal, and to possess in full, in every respect, power to perform all of the duties belonging to grand and petit jurors. And no objection can be taken to any venire of jurors except for fraud in drawing or summoning the jurors."

(2) It does not appear that the defendant suffered any injury by reason of the action of the court.

The defendant introduced as a witness in his behalf Ake Vaughn, the father of the defendant, the state offered testimony tending to impeach this witness, and in rebuttal defendant offered testimony as to the good character of the witness for truth and veracity. On cross-examination of these character witnesses, the state, over the objection of the defendant, was allowed to prove that they had heard that on various occasions the witness had drank whisky, been drunk, or had played cards. On a former appeal of this case our Supreme Court said:

"The defendant introduced a number of witnesses who testified to the good character of defendant and his father; the latter having also testified in the cause. Upon cross-examination of these witnesses the state was permitted to ask if they had not heard of the defendant and his father being drunk and gambling with cards. We are of the opinion that in this there was no reversible error." Vaughan v. State, 201 Ala. 472, 475, 78 So. 378, 381.

This ruling was based upon a line of authorities there cited, holding, in effect, that where a witness has testified in chief to the good character of the defendant, he may be asked on cross-examination whether or not he has heard of certain offenses specifying them, charged against the defendant before the then pending prosecution, inconsistent with the character he is called to prove. It will be noted that in the former appeal inquiry was as to the general character of the witness and defendant, while in the present appeal the inquiry is limited to general character for truth and veracity. The rule as laid down by Underhill on Criminal Evidence (2d Ed.) § 82, is as follows:

"A witness to good character may be asked on cross-examination to test his credibility whether he heard rumors of particular and specific charges of the commission of acts inconsistent with the character he is called to prove."

This rule was approved in White v. State, 111 Ala. 92, 21 So. 330 and in dealing with the question it is said in 1 Greenl. on Ev. (16th Ed.) p. 580, subd. (c):

"There may be, first, a limitation as to relevancy. Not all misconduct

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