Wilkinson v. State

• Decision Date: 11 April 1895
• Citation: 106 Ala. 23,17 So. 458
• Parties: WILKINSON ET AL. v. STATE.
• Court: Alabama Supreme Court

17 So. 458

106 Ala. 23

WILKINSON ET AL. v. STATE.

Supreme Court of Alabama

April 11, 1895

Appeal from city court of Mobile; O. J. Semmes, Judge.

James Wilkinson and another were convicted of murder, and appeal. Affirmed.

The appellants, James Wilkinson and Daniel Wilkinson, were indicted and tried for the murder of Edward Chastang, and were convicted of murder in the first degree and sentenced to the penitentiary for life. The rulings of the court upon the motion to quash the venire are sufficiently shown in the opinion. The evidence for the state, as shown by the bill of exceptions, tended to show that the deceased, Edward Chastang, and his brother, Frank Chastang, met the defendants in a public road in Mobile county, and that Edward Chastang was assaulted by Daniel Wilkinson, who pulled him from his horse to the ground, and while lying on the ground under said Daniel Wilkinson, James Wilkinson, the son of Daniel Wilkinson, shot Edward Chastang with a pistol, from the effects of which wound he died in a few hours. There was evidence tending to show that Edward Chastang was armed with a pistol, and other evidence tending to show that he was not armed at the time of the assault upon him by Daniel Wilkinson. The evidence for the state further tended to show that both the defendants had made threats against the deceased. The evidence for the defendants tended to show that when the Chastangs and Wilkinsons met in the road, Edward Chastang, the deceased, cursed Daniel Wilkinson, and assaulted him with a knife, cutting him in the back; that thereupon, Daniel Wilkinson called to his son, James Wilkinson, for aid, saying to him, that he was being cut to death by Edward Chastang; that thereupon, Frank Chastang placed himself between James Wilkinson and the contestant cursing James Wilkinson and fired at him; that James Wilkinson immediately returned the fire, the ball missing Frank Chastang, but struck Edward Chastang and killed him. The other facts of the case are sufficiently shown in the opinion. Upon the introduction of all the evidence, the defendants requested the court to give, among other charges the following written instruction, and duly excepted to the court's refusal to give the same: "Dan Wilkinson cannot be rightfully convicted on proof of killing of Ed Chastang by Jim Wilkinson only, unless Dan Wilkinson co-operated in or expressly or impliedly requested or induced or aided Jim Wilkinson to assail or kill Edward Chastang unlawfully, and if the jury believe from the evidence that Dan Wilkinson did not kill Edward Chastang, but that James Wilkinson did kill him, then the jury could not rightfully convict Dan Wilkinson of murder or manslaughter in any degree, unless Dan Wilkinson expressly or impliedly induced or requested or aided James Wilkinson to assail or kill said Chastang unlawfully; and if the jury also believe from the evidence, that Dan Wilkinson was engaged in a fight, unarmed with Edward Chastang, and was being cut in the back by said Chastang, and during this time called to his son, James Wilkinson, 'Come here, Jim, he is cutting me to death,' this alone would not justify the jury in finding that the defendant, Dan Wilkinson, intended that James Wilkinson should assail or kill said Edward Chastang unlawfully. Such language is susceptible of more than one construction, and according to the circumstances under which it was used, and might be either innocent or wrongful; and the burden is on the state, so far as Dan Wilkinson is concerned, to show that Dan Wilkinson, expressly or impliedly, requested or induced Jim Wilkinson to assail or kill Edward Chastang unlawfully, or co-operated with him therein before Dan Wilkinson can rightfully be found guilty on proof of killing by James Wilkinson."

Browne & Tonsmeire, for appellants.

William C. Fitts, Atty. Gen., for the State.

HARALSON J.

The special law of Mobile county (Acts 1886-87, § 5, p. 203) provides, that the jury commissioners, charged with the duty of selecting the 1,600 persons prescribed, most competent in their opinion to discharge the duties of grand and petit jurors, shall, upon the completion of a roll or list of jurors, cause to be prepared slips of strong white paper of equal size and texture on which shall be written, in a plain and distinct hand, the name of every person who has been entered on said roll,-one person's name being entered on each slip,-and that all persons on said roll, resident within the city of Mobile, shall have written on the slips bearing their names, the word "City," and all persons who reside outside of the city limits, shall have written on the said slips bearing their names, the word "County"; and one-fourth of all the names drawn by lot, shall be placed in a box, called the "circuit-court jury box," and the remaining three-fourths, in what is called the "city-court jury box," from which boxes grand and petit jurors are drawn in the manner directed for these courts, respectively.

2. There was evidence tending to show, that two of the slips drawn from the city-court jury box in this case, had on them nothing except the names of the jurors, and did not have in connection with the names, the words, "City" or "County," to designate the residence of the two jurors; that nine of the 100 slips drawn, had on them together with the names of the jurors, the letters, "Co.," but none of the nine slips had on them, the word "County," and that the other 89 had on them, with the names of the jurors, the word "City." Based on the requirements of the statute, for these reasons, after each side had announced ready for trial, the defendants moved the court to quash the venire. The motion was properly overruled. It was the duty of the commissioners, certainly, to comply with the requirements of the statute in making up the jury box,-to write on the slips, not only the names of the jurors, but the word "City" or "County," to...