White v. State

• Citation: 136 Ala. 58,34 So. 177
• Parties: WHITE v. STATE.
• Decision Date: 09 April 1903
• Court: Alabama Supreme Court

34 So. 177

136 Ala. 58

WHITE v. STATE.

Supreme Court of Alabama

April 9, 1903

Appeal from City Court of Gadsden; John H. Disque, Judge.

Walker White was convicted of murder, and he appeals. Reversed.

The defendant objected to going to trial, and moved the court to quash the venire of jurors drawn to try his case, upon the ground that the copy of the venire for his trial had not been served on him or his counsel at least one entire day before the day set for trial; the ground of the objection and motion being that the copy of the venire served on him did not constitute a copy of the special venire in the defendant's trial, because it did not show the residences of either the regular jurors drawn for the week or the special jurors drawn for the trial. The court overruled the objection and motion, and to this ruling the defendant duly excepted.

Upon the state offering to introduce one George Gordon as a witness, the defendant objected to the introduction of said witness upon the ground of his tender years, and thereupon the court proceeded to examine the witness on his voir dire. In answer to the question propounded to him as to how old he was, the witness replied: "Going on 12 years." The court then asked him where he lived, how long he had been living at such place; and to each of these questions the witness answered intelligently. The examination voir dire was then continued as follows: "Q. Have you ever been to Sunday school? Ans. No, sir. Q. Have you ever been to church? Ans. No, sir. Q. What do you think of boys that do wrong? Ans. The bad man will get them. Q. What do you think they would do with a boy that swore a lie? Ans. Hang him. Q. Do you think that a boy ought to tell the truth or a lie? Ans. The truth. Q. Who made you? Ans. Jesus Christ." The court declared the witness competent to testify, and overruled the defendant's objection to his competency and to this ruling the defendant duly excepted. This witness who was a son of the deceased, Jack Gordon, testified to the defendant having killed his father by stabbing him several times with a knife.

Upon the state offering to introduce Hubert Gordon as a witness the defendant objected to his competency on account of his tender years. The examination of this witness on voir dire is shown in the opinion. Upon this examination the court held the witness competent and permitted him to testify, against the defendant's objection, and to this ruling the defendant duly excepted. The witness Hubert Gordon testified to substantially the same facts to which his brother George Gordon testified, stating that the defendant killed Jack Gordon by stabbing him with a knife.

Upon the introduction of Watson Guest, he testified that he was a member of the coroner's jury that examined the body of Jack Gordon after he was killed. It was shown that the coroner's inquest was held the day after the killing of the deceased, which occurred between 10 and 12 o'clock at night. During the examination of the witness Guest, the solicitor asked him the following question: "How long in your judgment, had the man been dead when you saw the body?" The defendant objected to this question on the ground that it called for a conclusion of the witness and not a fact, and on the further ground that the witness was not shown to be an expert, and qualified to state his conclusions to the jury. The court overruled the objection, and the defendant duly excepted. There was other evidence introduced by the state tending to show that the defendant killed Jack Gordon.

The defendant introduced evidence tending to establish an alibi, and as a witness in his own behalf the defendant testified that he did not kill the deceased, Jack Gordon. There was also evidence tending to show that on the night of the killing the defendant was drunk.

The bill of exceptions contains the following recital in reference to the argument of counsel: "In his argument counsel representing the defendant said to the court, in the hearing of the jury: 'So far as the law of this case is concerned I have, as an officer of this court, only one suggestion to make. Our position is that the defendant did not do this killing; that he was not at Jack Gordon's on the night of the killing. We cannot and do not consider it within the range of possibilities that the jury should find this evidence sufficient to convince them that the defendant was there and did the killing; but nevertheless it is right that the court should instruct the jury with regard to the effect of drunkenness upon the questions of the degree of homicide.' And then counsel for the defendant addressed the jury, insisting that defendant was not guilty of any offense whatever under the evidence. The solicitor, in his closing argument for the state, among other things, said to the jury: 'Counsel for the defendant recognized the weakness of the defendant's case. Who is a better judge of his client's guilt or innocence than the counsel representing him? Counsel knew that under this evidence he could not maintain the innocence of his client, else why did he ask the court to charge the jury upon the law of drunkenness as it affects the degree of homicide? It was an admission on his part that he knew his client was guilty.' Counsel for the defendant objected to this argument on the part of the solicitor, called the attention of the court to the argument, and asked the court to stop the solicitor from making such an argument, and to exclude the remarks from the jury. The court overruled defendant's objection, and refused to exclude the remarks of the solicitor from the jury.

The defendant then and there duly excepted to this action of the court."

Goodhue & Blackwood, for appellant.

Massey Wilson, Atty. Gen., for the State.

DOWDELL J.

The appellant was indicted, together with Everett White, for the murder of one Jack Gordon, alias John Gordon. A severance was had, and the appellant was tried alone, the trial resulting in a conviction for murder in the second degree.

On the day set for the trial, the defendant objected to being put upon his trial, assigning as a ground therefor that he had not been served with a copy of the indictment one entire day before the day of his trial, pursuant to the order of the court. This objection was rested upon the grounds that, in the copy of the indictment served upon him, the name of the person alleged to have been killed was stated to be Jack Gorden, alias John Gorden, whereas, in the original, the name of the person alleged to have been killed was stated to be Jack Gordon, alias John Gordon. The objection was without merit. The names Gordon and Gorden being idem sonans, the copy served was sufficient. Munkers v. State, 87 Ala. 96, 6 So. 357; Nutt v. State, 63 Ala. 180.

The motion to quash the special venire on the ground of a variance between the original and the copy served on the defendant was properly overruled by the court. The record and the bill of exceptions show that the orders of the court and the venire served upon the defendant were in compliance with the statute. The sheriff is required to serve a copy of the special venire drawn, together...