Whitehead v. State

• Decision Date: 30 June 1921
• Docket Number: 4 Div. 927
• Citation: 90 So. 351,206 Ala. 288
• Parties: WHITEHEAD v. STATE.
• Court: Alabama Supreme Court

90 So. 351

206 Ala. 288

WHITEHEAD v. STATE.

4 Div. 927

Supreme Court of Alabama

June 30, 1921

Gardner and Thomas, JJ., dissenting in part.

Appeal from Circuit Court, Geneva County; H.A. Pearce, Judge.

Babe Whitehead was convicted of murder in the second degree and he appeals. Affirmed.

The pleas in abatement referred to will be found fully set out in the report of the Case of Dan Whitehead, 90 So. 356.

The following charges were refused to the defendant:

(3) "If, after a consideration of all the evidence in this case, the jury have a reasonable doubt as to whether or not defendant shot on the occasion in question, then the jury should acquit him."

(12) "The defendant after the death of deceased could not aid or abet in the killing of the deceased."

(13) "If, at the time and on the occasion of the death of deceased, all that defendant did was to undertake to shoot into the dead body of deceased, he would not be guilty unless the jury believed beyond a reasonable doubt that prior to the death of the deceased defendant entered into a prearrangement or a conspiracy with some person or persons to do an unlawful act towards the deceased."

(14) "In this case there is no evidence of a conspiracy between defendant and any other person or persons to either kill the deceased or do him great bodily harm."

(C) Affirmative charge for the defendant.

(D) "Unless you believe from the evidence in this case beyond all reasonable doubt, that defendant conspired with Dan Whitehead, or other person or persons, to do an unlawful act, then you must find the defendant not guilty."

(F) "If the jury have a reasonable doubt as to whether the killing was done deliberately, or as to whether it was done with premeditation, then they cannot in any event find the defendant guilty of murder in the first degree, and if they have a reasonable doubt as to whether the killing was done with malice, then they cannot find the defendant guilty of murder in any degree, but only of manslaughter at most and if, after considering all the evidence, the jury have a reasonable doubt as to defendant's guilt of manslaughter, they should find defendant not guilty."

Boswell & Ward, of Hartford, and C.D. Carmichael and A.A. Carmichael, both of Geneva, for appellant.

Harwell G. Davis, Atty. Gen., for the State.

MILLER J.

The defendant, Babe Whitehead, was jointly indicted with others for the offense of murder in the first degree. The defendant did not demand a separate trial. The state by its solicitor did. There was no objection by the defendant. The court granted it. This was not error. When the defendant does not demand a separate trial as the law permits (Code 1907, § 7842), whether the trial shall be joint or separate then rests in the sound discretion of the court. Wilkins v. State, 112 Ala. 55, 21 So. 56; Charley v. State, 204 Ala. 687, 87 So. 177.

The defendant was duly arraigned on the indictment, and pleaded not guilty in open court on December 6, 1920. The court permitted the defendant on December 15, 1920, after a plea of not guilty had been entered, to file three pleas in abatement to the indictment. These pleas come too late. A plea in bar, not guilty, waives pleas in abatement. It must be filed before plea to the merits. Jones v. State, 181 Ala. 63, 61 So. 434; Smith v. State, 142 Ala. 14, 39 So. 329.

"Any plea in abatement to an indictment must be filed at the first term at which the indictment is found, if the accused has been arrested, or if the accused has not been arrested such plea in abatement must be filed at the first term at which it is practicable after the defendant has been arrested, and in all cases such plea in abatement must be filed before the plea to the merits." Section 23, Gen.Acts 1909, p. 315.

This is plain. It cannot be misunderstood. It needs no interpretation. "In all cases such plea in abatement must be filed before the plea to the merits." The court permitted them to be filed. This was in the sound discretion of the court. Whittle v. State, 89 So. 43. It could have refused to allow them filed after plea of not guilty was entered. Plea 1 averred that one of the grand jurors, Barney Castelow, was a resident of the state of Florida at the time, and participated in the proceedings leading up to the indictment. Plea 2 averred that a grand juror, Barney Castelow, who participated in the proceedings leading up to the finding of the indictment, was a legal resident citizen of the state of Florida at the time the jury commissioners placed his name in the jury box. Plea 3 averred that the grand jury that found the same was not drawn from a legal jury box, as required by law, in this: The said box contained other name or names than male citizens of Geneva county, Ala., between the ages of 21 and 65 years of age. The state demurred to each of these pleas. Thus the Legislature spoke on this subject:

"No objection to an indictment on any ground going to the formation of the grand jury which found the same can be taken to the indictment, except by plea in abatement to the indictment; and no objection can be taken to an indictment by plea in abatement, except upon the ground that the grand jurors who found the indictment were not drawn by the officer designated by law to draw the same." Section 23, Gen.Acts 1909, p. 315.

This demurrer of the state raised this question, and assigned the foregoing ground to each plea. Neither plea averred that the grand jurors were not drawn by the officer designated by law. Hence the court properly sustained the demurrers. The facts alleged in each came within the curing clause of the statute. Section 23, Gen.Acts 1909, p. 315.

It is the duty of the jury commissioners to place the names of the citizens of the county in the jury box with the qualifications required by the statute. Section 11, Gen.Acts 1909, p. 309. It is also the duty of the presiding judge, under section 18 of the act, as amended, Gen.Acts 1919, p. 1039, to "hear all excuses and claims of exemptions and disqualifications" of jurors, before placing the names in a hat or box and drawing the grand jurors therefrom. While it is the duty of the jury commissioners and the presiding judge to see that the jurors possess the legal qualifications under said act before serving, still a failure to do so will not render the indictment void. Such defects were intended to be and are cured by section 23 of General Acts 1909, p. 315. Spigener v. State, 62 Ala. 383; Oliver v. State, 66 Ala. 8; Ex parte Rodgers, 190 Ala. 630, 67 So. 253; Garner v. State. 89 So. 69.

The dead body of Alto Windham, a white man, was found in the swamp near a river in Geneva county a short time before the indictment was found. His right arm was badly shot, broken all to pieces; his right side was wounded by a glancing shot; there was a "large wound in breast, in which an egg could have been dropped with ease." The deceased was seen in an automobile the afternoon of the evening his dead body was found, with Dan Whitehead, brother of defendant, and others armed with shotguns, going from the direction of Dan Whitehead's house to the river swamp. They first carried the deceased to Dan Whitehead's house, and from there to the swamp, where his body was found. The defendant, Babe Whitehead, was not with them in the automobile. Son Whitehead just before sunset of that day went to defendant's home, called him, told him Dan Whitehead was in trouble, some negro had raped his wife, and they had gone toward the river hunting him. The defendant got his gun and with Son Whitehead walked in a hurry to the river swamp, about two miles away, where Dan Whitehead and four or five others were with Alto Windham. When they reached the place defendant said: "Dan, I want to see you a minute." Dan replied, "If you want to see me, see me here; I am not going anywhere." He went and whispered to Dan. Some one asked deceased his name. Some one said, "Tell the man your name." He said, "My name is Alto Windham." Alto Windham said, "Please let me live." Some one said, "If we let you go, you will come back here and rape every woman around here." Somebody said, "Let's kill the s____ of a b____, and save the county the expense of trying him." After defendant "talked with Dan, he came back and lined up in position with the rest of them." They had their guns. Dan said to the deceased, "Stand up, old man, and look at me," and as deceased got up he said, "Please let me live." Dan shot him down when he stood up, and then there were four or five shots by the others. One witness testified that after Dan shot "Babe Whitehead started to fire his gun, and I caught hold of it, and said, 'Babe, don't do that,' and he said 'This gun must shoot,' and then he shot and his gun went off in the air."

The testimony of defendant and his witnesses was, in substance that when he reached the place where deceased was killed he asked "if they had caught him, and they said they had." Defendant said, "Is he a negro or white man," and some one replied, "He is too low down s____ of a b____ to be called a negro." Defendant asked, "What has he done; had he raped the woman?" and some one one said, "No, he had just attempted to rape her." The defendant then gave his gun to Jack Brooks and went to the river to get some water, and when he returned he heard them talking about killing him. Defendant said, "That won't do; yes; we will go and stop them." As defendant returned to the crowd, Jack Brooks said, "Kill the dam s____ of a b____; if you don't he will come back and rape every woman in this country." Defendant said, "Boys, that won't do," and went over to where Dan was standing, and defendant said, "Dan, come here; this won't do; let me talk to you," and said to him, "Lay down your gun and come here." Dan replied, "If you have...