White v. State

• Decision Date: 31 May 1923
• Docket Number: 6 Div. 904.
• Citation: 209 Ala. 546,96 So. 709
• Parties: WHITE v. STATE.
• Court: Alabama Supreme Court

96 So. 709

209 Ala. 546

WHITE v. STATE.

6 Div. 904.

Supreme Court of Alabama

May 31, 1923

Appeal from Circuit Court, Jefferson County; Ben D. Turner, Judge.

Charlie White, alias Sweet, was convicted of murder in the second degree, and he appeals. Affirmed.

Charges 1 and 3, refused to defendant, read "1. I charge you, that if you believe from the evidence that the defendant was free from fault in bringing on the difficulty and was assaulted by the deceased in a way that was manifestly felonious in its purpose, the defendant then would be under no obligation to retreat, but could, if necessary, stand his ground and kill his adversary.

"3. If you believe that the defendant was free from fault in bringing on the difficulty and that the defendant was in imminent danger of death or great bodily harm at the time the fatal shot was fired, or if not actually in such danger, that the circumstances surrounding him were such as to create in the mind of a reasonable man the honest belief that he was in such danger, you must acquit him."

M. H Murphy, of Birmingham, for appellant.

Harwell G. Davis, Atty. Gen., and Lamar Field, Asst. Atty. Gen., for the State.

THOMAS J.

The indictment and trial were for murder in the first degree. There was conviction of murder in the second degree, and the punishment fixed by the jury was that defendant suffer imprisonment in penitentiary "for 25 years."

The appeal is upon the record, which contains a waiver by defendant, and his counsel, of a special venire, and waives "the service of a certified copy of the indictment, and *** of a copy of the regular and special venire upon him," and "requests and agrees that said cause be set for trial as early as may be convenient." Such are the questions presented for decision by the appeal.

It is provided by section 6256 of the Code of 1907, as amended (Gen. Acts 1915, p. 708), that the order of the court for a special venire or fixing the day of the trial of the defendant shall not be set out in the transcript, unless some question thereupon was raised before the trial court, and, in the absence of any such question, such proceedings are upon appeal presumed to have been regular and legal. Charley v. State, 204 Ala. 687, 87 So. 177; Whittle v State, 205 Ala. 638, 89 So. 84; Johnson v. State, 205 Ala. 665, 89 So. 55.

It is recited that the defendant waived the drawing and subp naing of a special venire of jurymen for the trial of this cause. The defendant had the right to waive a special venire under section 7264 of the Code of 1907, and necessarily thereby waived the service of a copy of the special venire upon him, for the reason that there was no special venire. Patterson v. State, 202 Ala. 65, 66, 79 So. 459; Burton v. State, 194 Ala. 2, 69 So. 913; Washington v. State, 188 Ala. 101, 66 So. 34; McSwean v. State, 175 Ala. 21, 57 So. 732.

The defendant also waived the service of a copy of the indictment. Section 6 of the Constitution provides that the defendant has the right "to demand the nature and cause of the accusation and to have a copy thereof." General Acts 1919, § 32, p. 1041, also provide that the court must cause a list of the names of all the jurors drawn for the week in which the trial is set, and those drawn as provided in that section, "together with a copy of the indictment," to be served on the defendant by the sheriff, etc.

In the case of Mitchell v. State, 58 Ala. 417, the court held that in the absence of any objection in the court below, or anything in its records showing the contrary, it will be presumed that a copy of the indictment and list of jurors were duly served upon the prisoner before trial, as required by law. In Shelton v. State, 73 Ala. 5, it was also held that the record on appeal in a capital case need not show affirmatively that the prisoner was served, as required by the statute, with a copy of the indictment and venire; but, in the absence of any objection in the primary court on that ground, such service will be presumed to have been properly and regularly made.

The record shows that defendant waived arraignment, but the judgment entry shows affirmatively that he was arraigned. The record shows that defendant waived a copy of the indictment; but for aught that appears in the record the court made the order requiring a copy of the indictment to be served on the defendant notwithstanding his waiver, just as the defendant was arraigned notwithstanding the waiver of arraignment. Under the ruling in Mitchell v. State, supra, and Shelton v. State, supra, it will be presumed that an order was regularly made, requiring that a copy of the indictment be served on the defendant.

The proper or usual place for an order for a copy of the indictment to be served upon the defendant is in the order fixing the day for trial, and that fixing a special venire for the case. Inasmuch as in the Acts of 1915, page 708, the order for the special venire, or fixing the day for the trial is not required to be set out in the transcript, and it is customary for the order for a copy of the indictment to be served on the defendant to be embraced in such order, the order need not appear of record unless some question is raised thereon, which was not the case.

With further reference to the waiver of a copy of the indictment by counsel and the defendant, section 6 of the Constitution gives the accused a right "to demand the nature and cause of the accusation; and to have a copy thereof." (Italics supplied.) A demand must therefore be made by the defendant, and it must appear that his demand was denied, before any question can be raised by him that he was denied the enjoyment of such constitutional rights.

It will be recalled that the court, in the case of Wade v. State, 207 Ala. 1, 3, 92 So. 101, 102, held that a defendant could not waive the constitutional right of a public trial. It affirmatively appeared in that case that:

"The trial court denied the presence of all parties in the courtroom during the trial or during the taking of the testimony, except those who are related and those who are officers of the court, either as attorneys or officers, whose duty it may be to come in during the course of the trial."

The defendant had a constitutional right to a public trial, which the court says he could not waive. He also had a constitutional right under section 6 of the Constitution, "to have a copy" of the indictment. The difference, however, between the instant case and Wade v. State, supra, is that it affirmatively appears from the face of the record in the latter case that the court denied to the defendant a constitutional right, while in the instant case, for aught appearing in the record, the defendant had the benefit of the constitutional right, on demand, of having a copy of the indictment. It nowhere appears in the record that he did not get a copy of the indictment, or that an order for it to be served upon him was not made. Under the holding in Mitchell v. State, supra, and Shelton v. State, supra, it will be presumed that such order was made.

Charge 1 was properly refused for the failure to hypothesize a present necessity for the defendant to shoot, or a forcible or murderous assault. The assault referred to may have been at some other time, and not immediately preceding and at the time it is sought to instruct the jury that the defendant had the right to "stand his ground and kill his adversary." In other words, the assault is not limited to the time of the shooting. Moreover, the assault must be accompanied by force, else the defendant is required to retreat if he can do so without increasing his danger.

In the case of Dupree v. State, 33 Ala. 380, 389 (73 Am. Dec. 422), a charge somewhat similar to the one here involved was under consideration, and the court declared:

"The charges asked might have misled the jury, by making the impression upon them that the

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