Young v. State

• Decision Date: 14 February 1907
• Citation: 149 Ala. 16,43 So. 100
• Parties: YOUNG v. STATE.
• Court: Alabama Supreme Court

43 So. 100

149 Ala. 16

YOUNG v. STATE.

Supreme Court of Alabama

February 14, 1907

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

Bishop Young was convicted of murder in the first degree, and he appeals. Affirmed.

The defendant was indicted and tried for killing Dave Bell by shooting him with a pistol. The errors assigned as to the refusal of the court to quash the special venire sufficiently appear in the opinion. The evidence tended to show that defendant and deceased and some others were engaged in a game of cards just before the shooting took place, and that some were playing at the time of the shooting; that defendant and deceased were standing up near the fire, and the rest of them were a few steps away; that just before the shooting the defendant had been playing with the crowd and had lost all his money, and that he was mad and enraged, and grabbed up the cards from the ground and said he was a great mind to shoot through them; that the fire was about out, and Dave Bell gathered up some straw and threw it on the fire; that defendant was standing near, when the fire suddenly blazed up and ran up his back. Some one said, "Look out! Bishop." Bishop kicked the fire, and at the same time threw his arm across his shoulder, turned about half around and fired in the direction of Dave Bell, and the shot entered Bell's head and he fell to the ground. The witness was then permitted to testify that all the crowd, except Alf White, ran off a few steps, the defendant going with them when Alf White said, "Come back! it was an accident," and the defendant and the others came back. Other witnesses testified substantially to the same facts. The defendant's evidence tended to show that it was an accidental shot. The defendant requested the following charges, which were refused: Charge 22: General affirmative charge. Charge 4: "The court charges the jury that unless the evidence against the defendant should be such as to exclude to a moral certainty every hypothesis or supposition but that of his guilt, or of the offense imputed to him, the jury must not convict the defendant." Charge 3: "The burden of proof in every criminal case is on the state to prove all the allegation in the indictment; and if on the whole evidence, the jury have a reasonable doubt whether the defendant is guilty of the crime that is charged, they should acquit him." Unnumbered charge: "If the evidence leads to a reasonable doubt, that doubt will avail in favor of the prisoner." Defendant was adjudged guilty of murder in the first degree and sentenced to life imprisonment.

Alexander M. Garber, Atty. Gen., for the State.

DENSON J.

Before entering on the trial the defendant moved to quash the venire because nine of the special jurors drawn by the presiding judge, and whose names were served on the defendant, were not summoned. It was shown on the hearing of the motion that said jurors could not be found in the county by the sheriff. The motion was properly overruled. Barnes' Case, 134 Ala. 36, 32 So. 670; Caddell's Case, 129 Ala. 57, 30 So. 76; Gregory's Case, 140 Ala. 16, 37 So. 259; Webb's Case, 100 Ala. 47, 14 So. 865.

The bill of exceptions shows that, in organizing the special jury to try the case, the names of the veniremen were drawn from the box in regular order, and 15 of those drawn, and who were served on the defendant, failed to answer; that they were not present, their absence was not explained, nor did the court enter forfeitures against them. At the conclusion of the impaneling of the jury the defendant moved to quash the venire and strike the jury on account of the absence of the large number of jurors and their unexplained absence. Giving the defendant full benefit of the above recitals, we would say they show the 15 jurors were summoned and did not obey the summons--were not present. This furnished no ground to quash the venire. The law was complied with when summons was served on each juror. No duty rested on the court or the sheriff...