Walker v. State

• Decision Date: 23 January 1908
• Citation: 45 So. 640,153 Ala. 31
• Parties: WALKER v. STATE.
• Court: Alabama Supreme Court

45 So. 640

153 Ala. 31

WALKER v. STATE.

Supreme Court of Alabama

January 23, 1908

Appeal from Law and Equity Court, Walker County; T. L. Sowell Judge.

Henry Walker was convicted of homicide, and he appeals. Reversed and remanded.

See 41 So. 878.

Defendant is indicted for killing Maggie Dickerson by striking her with an ax or a pistol, or with some other instrument unknown to the grand jury. The facts as to the motion to quash the venire and as to objections to testimony are sufficiently stated in the opinion. The defendant requested the following charge, which was refused: "(1) I charge you, gentlemen of the jury, that, if there is one single fact proved to the satisfaction of the jury which is inconsistent with the defendant's guilt, this is sufficient to raise a reasonable doubt, and the jury should acquit the defendant."

L. B Gray and John A. Coleman, for appellant.

Alexander M. Garber, Atty. Gen., for the State.

DENSON J.

The motion to quash the venire is based on six grounds, the first four of which are predicated on mistake in the names of special veniremen. These grounds furnished no valid reason for a quashal of the venire. The extent of the defendant's right, in this respect, was to have the names discarded and other jurors summoned in their stead. Code 1896, § 5007; Bell's Case, 115 Ala. 25, 22 So. 526; Longmire's Case, 130 Ala. 66, 30 So. 413; Jones' Case, 104 Ala. 30, 16 So. 135.

The other grounds of the motion to quash are that the special venire in this case was also drawn and summoned to try another capital case at the same term of the court. Unless otherwise controlled by statute (and there is no statute of the kind applicable to the courts of Walker county of which we are advised), it is the law in this jurisdiction that each capital case must have its own separate venire; and it is error to draw and summon only one for two or more cases. Chamblee's Case, 78 Ala. 466; Evans' Case, 80 Ala. 6; Hunt's Case, 135 Ala. 1, 33 So. 329; Adams' Case, 133 Ala. 166, 31 So. 851. As the case must be reversed on a point to be hereafter stated, it is not necessary to determine at this time whether, under the facts shown on the trial of the motion, the case is withdrawn from the influence of the principle stated. However, we remark that it is always safer for the trial court to follow the precedents.

After a juror has been sworn and examined by the court touching his qualifications for service, and declared competent, the court may as matter of grace allow the defendant to ask him additional questions; but it is not a matter of right and the refusal by the court to allow additional questions will not constitute error. Lundy's Case, 91 Ala. 100, 9 So. 189; Bales' Case, 63 Ala. 38; Hawes' Case, 88 Ala. 66, 7 So. 302.

That a juror has been subp naed as a witness in the case is a good ground of challenge for cause; but it is reversible error for the trial court of its own motion, and against the objection of the defendant, to excuse a juror on this ground, as the cause of challenge may be waived. The trial court, therefore, committed error in excusing the juror G. S. Elliott, which, under the decisions of this court, must work a reversal of the judgment of conviction and a remandment of the cause. Bell's Case, 115 Ala. 25, 22 So. 526; Scott's Case, 133 Ala. 112, 32 So. 623.

The evidence tended to show that the defendant inflicted the blows from the effects of which deceased died. It also tended to show that at the time the blows were inflicted the person who inflicted them wore overalls; and the deceased stated to the defendant, when he was carried before her for identification and in her dying declaration, that he had on the shirt he was then wearing and that the bloody prints of her fingers could be found on the shirt where she pushed him off. The evidence further tended to show that, at the time the defendant was arrested at his house for this offense, his clothes were seen there, and that amongst them a suit of overalls was found, in a sack at the head of his bed, with a bloody stain on the knees of the garment. The witness Davidson, who was present when the overalls were found, was allowed by the court, against the objection of the defendant to testify that the knee of the overalls looked like the blood had been washed off. It is urged here that this was merely the expression of the opinion of the witness, and that the court erred in allowing it as evidence. The appearance of...