Wright v. State

• Decision Date: 30 June 1916
• Docket Number: 6 Div. 959
• Citation: 15 Ala.App. 91,72 So. 564
• Parties: WRIGHT v. STATE.
• Court: Alabama Court of Appeals

72 So. 564

15 Ala.App. 91

WRIGHT v. STATE.

6 Div. 959

Court of Appeals of Alabama

June 30, 1916

Appeal from City Court of Bessemer; J.C.B. Gwin, Judge.

Will Wright was convicted of murder in the second degree, and he appeals. Reversed and remanded.

The assignments of error mentioned and sufficiently stated in the opinion are as follows:

(16) Overruling defendant's objection to the following question propounded to Powell, by the state: "Do you know anything about Will having trouble about stolen clothes?"

(17) Answer of witness, "I heard Will say he had a pistol and some clothes stolen from him (the deceased was Robert Foster)."

(8) Sustaining objection of state to question to witness Clayton: "Foster was a relative of them (the Jones boys), was he not?"

(9) Sustaining the state's objection to the following question to the same witness: "You were running with the Jones boys, were you not?"

(10) The court committed error sustaining the solicitor's renewed objection to the same line of testimony, after statement by defendant's counsel that he expected to prove by such testimony that Frank and Leo Jones were related to the deceased, Foster, and that they were close friends of the witness, and that witness and said Jones boys were constantly together.

(19) Sustaining state's objection to the following question propounded to defendant: "Do you know whether or not Bob Foster was related to the Jones boys?"

"(20) Sustaining state's objection to the following question propounded to the defendant: "I will ask you if the witness Clayton does not run with the Jones boys continuously?"

(21) Sustaining objection to defendant's question to the witness Zollicoffer, as follows: "You stayed with the Jones boys last night, did you not?"

The defendant objected to, and moved to exclude, the following remarks of the solicitor, in his address to the jury:

"Gentlemen of the jury, you can rest assured that, if you convict this defendant under the law and the evidence in this case, and the court is shown that your verdict is not sustained by the law and the evidence, it will become his duty to set the verdict aside, and he would do so."

Assignment 18:

"Sustaining the state's objection to the question propounded by defendant to the witness George Powell "Did you hear Zollicoffer make any statement that night when you passed there as to where he was going?"

Goodwyn & Ross, of Bessemer, for appellant.

William L. Martin, Atty. Gen., and Ben. G. Perry, of Bessemer, for the State.

EVANS J.

Appellant was indicted for murder, convicted of murder in the second degree, and sentenced to a term of ten years' imprisonment. From the judgment of conviction he prosecutes this appeal.

The record discloses that in addition to 48 jurors drawn and summoned to act as the regular jurors for the week beginning June 7, 1915, the trial court, on May 29, 1915, drew 7 additional names, which, together with the 48 names, it was ordered should constitute a special venire to try appellant's case. On June 7, 1915, appellant was arraigned, and the court set his case down for trial on the succeeding day. On June 7th the court, after hearing excuses claims of exemption, and disqualification, excused 6 jurors which, together with 9 jurors not answering and 1 not served left a venire of 39. On the day of trial (June 8th), before entering upon the trial, appellant made a motion to quash the venire, and also filed a written objection, protesting against being put upon his trial, in view of the fact that the previously excused jurors had not been resummoned, and he was deprived of the venire prescribed by statute--a minimum venire of 50. Acts 1909, p. 319, § 32. This court, in Fowle's Case, 8 Ala.App. 168, 63 40, and Lewis' Case, 10 Ala.App. 31, 64 So. 537, held adversely to appellant's contention; by the Supreme Court, in Carmack's Appeal, 191 Ala. 1, 67 So. 989, held that where 26 jurors, who were on the regular panels for the week and also on the special venire to try a capital case, were excused upon the organization of the regular juries for the week, and not resummoned for the capital venire, thus putting the accused upon a venire of less than 50, such action was reversible error. See, also, Waldrop v. State, 185 Ala. 20, 64 So. 80.

Numerous exceptions were reserved to the evidence. There was no error in overruling appellant's question propounded to M.F. Parker, to wit, "Do you help him [solicitor] strike juries in all cases that you arrest?" Witness' custom, or what he did or what interest he manifested in other cases, was wholly and plainly irrelevant and immaterial.

The court was not in error in allowing the solicitor to ask witness J.N. Smithson:

"I will ask you if Will Wright [appellant] made a statement to you that day at his house that Robert Foster [deceased] had stolen a suit of clothes and a pearl-handle pistol from him."

This tended to shed light on the question of motive and intent.

As to assignments of error 16 and 17, relating to testimony of Will Powell (transcript, p. 40), the bill of exceptions discloses no objections, exceptions, or rulings of court; however, the testimony was entirely proper as tending to prove motive and intent. For the same reason, it was competent for deputy sheriff Moon to testify that he had a warrant, or warrants, for deceased sworn out by appellant. Nor was it error to permit witness Moon to say what the warrant he had for the deceased accused him of. This merely called for evidence of a collateral fact--not proof of the contents of a written instrument. Mobile, J. & K.C.R.R. Co. v. Hawkins, 163 Ala. 565, 51 So. 37; Griffin v. State, 129 Ala. 92, 29 So. 783; Pentecost v. State, 107 Ala. 81, 18 So. 146; Street v. Nelson, 67 Ala. 504.

The questions asked witness Smithson, "Did you notice any indication of a struggle?" and, "Did the place indicate that he had moved around any," are not objectionable as opinions. "Under a recognized modification of the general rule against admitting in evidence the opinions of ordinary...