Yarbrough v. State

• Decision Date: 20 December 1894
• Parties: YARBROUGH v. STATE.
• Court: Alabama Supreme Court

16 So. 758

105 Ala. 43

YARBROUGH v. STATE.

Supreme Court of Alabama

December 20, 1894

Appeal from criminal court, Jefferson county; S.E. Greene, Judge.

Ed Yarbrough was convicted of assault with intent to murder, and appeals. Affirmed.

After the organization of the jury, but before the indictment was read to them, one of the jurors stated to the court that he was sick, and could not possibly sit on the jury, and asked to be excused. Upon examination by the court, the juror stated the cause of his suffering, and the court excused him against the objection and exception of the defendant. In obedience to the order of the court, the bailiff summoned another juror on the venire of the week, named Brown, whom the defendant challenged. The court then ordered the bailiff to summon one Lawler, the only remaining juror who had not been challenged by the state or the defendant, "and who the jury having been completed, was excused until the next morning." The defendant objected to the court's making said order, and duly excepted to the court's overruling his objection. Defendant, in the selection of the jury, having challenged nine jurors, the court refused to allow him to challenge Lawler, and the defendant excepted. After the state examined several of its witnesses, the court adjourned until the next morning. On the court reconvening the juror Lawler stated that he was sick, and unable to proceed with the trial of the cause, and asked to be excused. Upon stating the nature of his sickness, the court excused the juror, and the defendant excepted. The court thereupon over defendant's exception, ordered the bailiff to summon a qualified juror to take the place of said Lawler. The entire venire for the week having been exhausted, the bailiff summoned one J. G. Benton, and, after examining him as to his qualifications, the court pronounced him competent. The defendant claimed the right to challenge the said juror, but the court refused to allow the defendant to challenge, he having already challenged nine jurors, and the defendant excepted. The defendant then objected to going to trial before the jury as organized, "because said jury was not summoned, impaneled, and sworn as required by law." The court overruled this objection, and the defendant excepted. The defendant then moved the court to be discharged, on the ground that he had already been placed in jeopardy, and duly excepted to the court's overruling his motion. The defendant then filed a plea of former jeopardy, and a plea of former acquittal, setting out the facts as stated above. To these pleas the state demurred, and, upon the court's sustaining the demurrer to each of said pleas, the defendant separately excepted.

The state introduced one J. B. Cole as a witness, who testified in substance, that some time between the 1st and 15th of February, 1891, the defendant and a tall black man, whom he did not know, came into his store, in the suburbs of the city of Birmingham, about 8 o'clock at night, where he and his daughter, a girl 12 years old, were sitting by the stove; that as the witness started behind the counter, and asked the defendant and his companion what they wanted, they each drew their pistols, and said that they wanted money; that, as the witness dodged under the counter, the defendant fired at him, his head, before he dodged, being directly in the range of the ball; that the other man fired into the ceiling, over the head of the defendant, and did not fire at the witness at all. The witness identified the defendant as the man, and further testified, in answer to the question of the state, "that he saw the defendant the next morning pass right by his store," walking within a few feet of the witness. The defendant objected to the question eliciting this statement, on the ground that it was irrelevant and immaterial, and also moved the court to exclude the answer of the witness upon the same ground. The court overruled the objection and motion, and the defendant separately excepted to each ruling. The defendant's counsel asked the witness "if it was not a fact that he had taken no steps to have defendant arrested until after Polly Foster told him that she had heard the defendant and two other men, on the night of the assault, conspiring to rob him; and if Polly did not make this statement a day or two before defendant's arrest, and a day or two after her conviction by a justice of the peace for an assault on Beverly Hargrove's sister, Beverly Hargrove being the complainant in that prosecution and codefendant in this." The witness answered that such was a fact. On redirect examination by the state, this witness was asked in rebuttal "if Polly Foster had not, previous to the time immediately preceding the defendant's arrest, told him, in another conversation, of this conspiracy between the defendant and Beverly Hargrove to rob him." The defendant objected to this question on the ground that it called for illegal and irrelevant testimony. The court overruled the objection, and defendant excepted. Upon the witness answering that "Polly Foster had Spoken to him several times about the alleged conspiracy, the first time being as much as six or eight months before defendant's arrest," the defendant moved to exclude the answer, and duly excepted to the court's overruling his motion. Polly Foster, a witness for the state, testified that in the fall of the year, about 8 o'clock p. m. on the night Cole was assaulted, she heard defendant and another man conspiring to rob Mr. Cole, and that shortly after she heard four pistol shots. A witness for the state testified that he knew Polly Foster, and knew her general character in the community where she lived, and that it was bad, "and stated a number of things tending to show her mental unsoundness, and stated, as his opinion, that Polly Foster was of unsound mind." Several witnesses for the defendant testified that, in their opinion, Polly Foster was of unsound mind. The defendant offered to read in evidence to the jury from "Wills on Circumstantial Evidence," a legal text-book; but, upon the state's objection, the court refused to allow the defendant to read from said book, and the defendant thereupon excepted. The state introduced, in rebuttal, one Z. T. Hurst, who testified that he knew Polly Foster; and, upon being asked if he knew her general character, he said that he did not know her general character in Birmingham, "but he knew her character in Gadsden, Alabama, 10 or 12 years ago, and that it was good at that time; and that he had known her for 16 years." The defendant moved to exclude this testimony of the witness, and duly excepted to the court's overruling his motion. The witness further testified that he saw Polly Foster for about two years once every week; that, during that time, she washed for him, and he had frequent conversations with her. The court then asked the witness "what was his opinion as to her mental soundness or unsoundness at that time." The defendant objected to this question, upon the ground that the witness was not shown to be an expert, and did not show sufficient familiarity with the witness Foster's condition to express an opinion. The court overruled the defendant's objection; defendant excepted; and the witness answered, "I think she was weak-minded." Pat Walsh, as a witness for the state, in rebuttal, testified "that he had known Polly Foster for 16 or 17 years, and that he saw her frequently in Gadsden for a space of two years, about nine years ago, and that she was employed in his family for several months as a cook, and he had frequent conversations with her, and that he had known her in Birmingham for seven years, and that she had lived in his family here for four years." The state then asked this witness, "What is your opinion as to her mental condition?" The defendant objected to this question, on the ground that the witness was not qualified. The court overruled the objection, and defendant excepted. On the witness answering that he considered her of sound mind, the defendant moved to exclude his answer, and excepted to the court's overruling his motion.

The defendant requested the court to give the following written charges, and duly excepted to the court's refusal to give each of them: (1) "If the jury believe the evidence they will find the defendant not guilty." (2) "If the jury believe from the evidence that one of the defendants in the indictment was guilty of an assault with the intent to murder, and that the other was guilty of an assault with the intent to rob, in that event the defendant could not be convicted." (3) "Every single fact or charge against the defendant tending to prove his guilt, or which would be necessary in regard to same, should be clearly and satisfactorily proven; and, if not so proven, defendant should be acquitted." (4) "If there exists any reasonable or substantial doubt of the guilt of the defendant, he is entitled, as of right, to be acquitted; and, should any uncertainty whatever exist as to his guilt, he...