Walker v. State

• Decision Date: 12 February 1891
• Citation: 9 So. 87,91 Ala. 76
• Parties: WALKER v. STATE.
• Court: Alabama Supreme Court

9 So. 87

91 Ala. 76

WALKER v. STATE.

Supreme Court of Alabama

February 12, 1891

Appeal from circuit court, Hale county; JOHN MOORE, Judge.

The defendant in this case, appellant here, was indicted, tried and convicted of murder in the first degree, and sentenced to be hanged.

S A. Hobson, for appellant.

W L. Martin, Atty. Gen., for the State.

MCCLELLAN J.

The alleged mistake in the name of May, who was drawn as one of the special jurors for the trial of this case, which is made the ground of the motion to quash the venire, is unsupported by any evidence; and, even had it been proved would not have authorized or justified the action invoked by the motion. Gibson v. State, 89 Ala. 121, 8 South. Rep. 98.

Application for a continuance, on the ground of the absence of material witnesses, is addressed to the discretion of the trial court, and its action thereon is not revisable. De Arman v. State, 77 Ala. 10.

The failure of the record to affirmatively show the service of a copy of the indictment and of the special venire on the defendant one entire day before the trial, in accordance with the order of the court in that regard, cannot avail the appellant. This court will presume compliance with the order, in the absence of objection in the court below, founded on the want of it. Clarke v. State, 78 Ala. 474; Breden v. State, 88 Ala. 20, 7 South. Rep. 258.

We are unable to conceive that the fact that the defendant "had credit" at the store of Ivey Cottrell, a brother of the deceased, was at all relevant to any issue in this case. Conceding its pertinency, the error of the original exclusion of evidence of the fact was cured by its subsequent admission. Cleveland v. State, 86 Ala. 1, 5 South. Rep. 426.

The principles of law applicable to the admission of evidence of character have been so fully and frequently declared by this court in the recent past that we shall not attempt another formulation and statement of them here. Under those principles, the action of the trial court in excluding evidence offered by the defendant to the end of showing his good character, of the facts that "the white people all liked him, and considered him the white man's friend;" that "he was a white man's negro;" that "he was a friend to the whites, and respected white men like I [the witness] have known no other darkey to do, and all the white people around where we were were his friends;" that "it had been said he had saved the life of Mrs. Cooper's husband;" that "when a bad negro had to be arrested Tom Walker was always called upon, and always faithfully performed his duty;" and that "no one occasion he protected Mrs. Miller, when a number of negroes threatened her life," etc.,-was so palpably correct as neither to need or admit of discussion in support of it. Moulton v. State, 88 Ala. 116, 6 South. Rep. 758, and authorities there cited; Hawes v. State, 88 Ala. 37, 7 South. Rep. 302; Holmes v. State, 88 Ala. 26, 7 South. Rep. 193; Smith v. State, 88 Ala. 73, 7 South. Rep. 52; Morgan v. State, 88 Ala. 223, 6 South. Rep. 761; King v. State, 89 Ala. 146, 7 South. Rep. 750. Nor was the fact that one Tom Walker came to the assistance of Mrs. Miller, "when she was threatened or disturbed by a number of negroes," admissible as tending to identify him with the defendant. The record fails to disclose that any question was raised on the trial as to the man whose character was deposed to by this witness being identical with the defendant; and, if such question had been raised, the fact sought to be adduced on this theory had no tendency towards its solution.

Section 4 of the act of February 27, 1889, "in relation to criminal insane persons, who are charged by indictment with murder and other high crimes," provides "that in prosecutions for the offenses named in section two of this act, where the defense of insanity is set up, it shall be interposed by special plea at the time of his arraignment which, in substance, shall be, 'Not guilty by reason of insanity,' which plea shall be entered of record upon the docket of the trial court. Such plea shall not preclude the usual plea of the general issue, which shall not, however, put in issue the question of the irresponsibility of the accused by reason of his alleged insanity; this question being triable only under the special plea." Succeeding sections provide for a special verdict if the jury find that the defendant committed the act charged, but was at the time insane, and for the confinement of the accused, in such event, in the insane hospital until discharged therefrom in the manner pointed out in the act. Acts 1888-89, p. 742 et seq. "The leading purpose of the statute was to separate, as far as possible, the two issues presented by the pleas of 'not guilty,' and 'not guilty by reason of insanity,' and to have the proof directed to these issues respectively, and the verdict respond to them separately." Maxwell v. State, 89 Ala. 150, 165, 7 South. Rep. 824. And to this end it has expressly provided that the question of a defendant's insanity is triable only under the special plea of "not guilt by reason of insanity." While it may be that trial courts, leaning to the side of mercy, and exercising a liberal discretion in respect to the time of filing pleas, would in a proper case be justified in allowing the interposition of this special plea at any time during the progress of the cause, taking care that the state's right to meet the new phase of the case thus presented should not be prejudiced; and this, though the law requires the plea to be filed at the time of arraignment; yet, unless the plea is in fact interposed at some stage of the trial, there can be no inquiry into or discussion of the question of sanity vel non. We conceive of no constitutional provision which the statute, or this necessary construction of it, contravenes. The special plea was not interposed in this case at all, nor offered to be interposed. There was, therefore, no issue before the jury to which the proposed argument of counsel on the subject of insanity could be addressed. Moreover, we find in this record no evidence going to such issue, had it been formulated. Not only so, but the argument, which was arrested by the court as being a needless consumption of time, the bill of exceptions expressly states, was proceeding on the theory that what is termed "emotional insanity" would constitute a defense to the charge,-a theory which finds no justification or support in our jurisprudence. Boswell v. State, 63 Ala. 307; Parsons v. State, 81 Ala. 577, 2 South. Rep. 854. The court properly refused to allow this line of argument to be pursued, since no possible conviction in the minds of jurors...