Webb v. State

• Decision Date: 08 February 1894
• Citation: 14 So. 865,100 Ala. 47
• Parties: WEBB v. STATE.
• Court: Alabama Supreme Court

14 So. 865

100 Ala. 47

WEBB v. STATE.

Supreme Court of Alabama

February 8, 1894

Appeal from circuit court, De Kalb county; John B. Tally, Judge.

Bob Webb was indicted and tried for murder, and convicted of murder in the second degree. Affirmed.

On defendant's being arraigned, he pleaded not guilty. The court thereupon set the cause for trial on the 22d day of February, 1893, and ordered that 30 persons be drawn and summoned for the trial in addition to the regular panel. On the day set for the trial it appeared during the organization of the jury that only 28 of the 30 special jurors had been summoned, 2 of said jurors not having been found by the sheriff; that one of said jurors had left the county, and that diligent, but ineffectual, search had been made by the sheriff's deputy for both of said jurors. The defendant moved to quash the venire because said two jurors had not been summoned. The court overruled the motion, and the defendant duly excepted. The jury having been organized, the court adjourned until the next day at 9 o'clock a. m and when it convened on that day one of the jurors announced that he was sick, and, "it being shown to the satisfaction of the court that said juror was unable to proceed with the trial of said cause, and incapacitated, it was ordered that said juror be discharged." To this action of the court the defendant objected, and, his objection being overruled by the court, he duly excepted.

The state examined as a witness the justice of the peace before whom the defendant testified on his preliminary examination and identified by the witness a written statement of the defendant's testimony, sworn to and subscribed before him after voluntarily going on the stand in his own behalf. Upon the statement being offered in evidence by the state, the defendant objected to its introduction in evidence on various grounds, and, among others, the following: "The part offered has relation to parts not offered." The court overruled the objection, and admitted the statement in evidence. To this ruling of the court the defendant duly excepted. The statement as offered and admitted is as follows: "That is the knife with which I was cutting. Was cutting with the big blade. That is the knife with which I cut Harrison. With the big blade. I am right-handed." The knife referred to was exhibited to the jury, and the physician who was called to see deceased after the cutting and after his death, testified that death resulted from a wound in the neck, made with a sharp instrument, which severed the jugular vein. The state introduced the sheriff as a witness, and the defendant objected to his testifying in the cause, "because all the witnesses had been put under the rule, lists had been exchanged, and the name of said De Shields [the sheriff] was not upon the list furnished the defendant by the state." The objection was overruled and the said De Shields was put upon the stand, and testified to the defendant's having escaped from the jail while in confinement under the charge of the indictment; and defendant duly excepted. It was shown by the evidence that the killing was caused by the deceased's throat being cut with a pocketknife. The defendant, testifying in his own behalf stated, among other things, that the deceased and one Kelly came to the house where defendant was boarding some time in the night, and, being refused lodging, became boisterous and troublesome. That on inquiring and learning that Kelly was one of the parties he told the landlady Kelly was a friend, and he would try to get him to go away. That he went out, and engaged Kelly in friendly conversation, and, while talking with Kelly, took out his knife and some tobacco, intending to cut the tobacco for his pipe. That deceased came towards him with a stick, and struck him several blows; and that when he attempted toward off the blows he finally struck at the deceased with the knife. The latter threw up his hand, and knocked the knife so that it struck his neck.

The defendant requested the court, in writing, to give the following charges, and separately excepted to the court's refusal to give each of them as asked: (1) "It is not necessary there should be actual danger of death or great bodily harm in order to justify the taking of human life; but if the jury are satisfied from all the evidence in the case that the circumstances attending the striking the fatal blow were such as to impress the defendant with a reasonable belief that at the time of striking the blow it was necessary in order to prevent death or great bodily harm to his person then they must acquit the defendant, unless they further believe that the defendant was not free from fault in bringing on the difficulty." (2) "The court charges the jury that, while the law requires that Bob Webb should be in a situation of either real or apparent danger to life or of receiving grievous bodily harm, that that danger was...