Opinion
4 Div. 966.
June 22, 1922.
Appeal from Circuit Court. Henry County; H. A. Pearce, Judge.
Lee Tompkins, of Dothan, for appellant.
The court erred in admitting, over defendant's objection, the alleged statement as made by defendant to the witness Corbitt. 17 Ala. App. 539, 85 So. 852. The court erred in refusing charges requested for defendant. 60 Ala. 26; 52 Ala. 348; 62 Ala. 599; 65 Ala. 446; 50 Ala. 166; 63 Ala. 169.
Harwell G. Davis, Atty. Gen., for the State.
Brief of counsel did not reach Reporter.
The defendant, appellant, is sentenced to death for the murder of Miles McCoy. The defendant admitted having struck McCoy two blows on the head with a mattock. Defendant fled, and was later apprehended. He sought to justify his act on the theory of self-defense, testifying that McCoy, provoked at defendant's handling of a mule he was ploughing, struck him with a hoe handle and then, turning the implement, was about to strike him with the blade of the hoe, when defendant ran in under his arms, seized a mattock from the ground and struck McCoy, and again after he fell. There was no eyewitness to the tragedy. Two men near by heard nothing preceding their discovery of McCoy's dead body on the ground.
Section 32 of the 1909 Jury Law (Gen. Acts, Sp. Sess. p. 320) provides that the failure of the sheriff to summon any juror drawn, the failure or refusal of a juror to attend the trial, or mistake in the name of a juror, shall not suffice to require the quashing of the venire or the continuance of the case. No error resulted from the fact that at an earlier day in the week of the trial the court excused Gamble because of sickness in his family, juror Gamble not returning on Wednesday as was expected and promised.
J. Nelson Trawick of precinct 18 and another of the same name of precinct 14 were summoned as jurors and both appeared. The court excused Trawick of precinct 14 "because his name was not drawn as a juror and did not appear on the venire." This conclusion of fact required the exclusion of the Trawick of precinct 14 as a member of the venire to try defendant. If not drawn as a juror, that Trawick could not be accepted or serve as a juror. There was no error in declining to accept or to recognize that Trawick as a juror.
The bill of exceptions does not purport to contain all or substantially all of the evidence presented on the trial. The predicate for the admission of defendant's inculpatory statements to Sheriff Corbitt (they were the same, in effect, recited by defendant when testifying as a witness) was sufficient to justify the sheriff's testimony reciting them after he had testified that he neither did nor said anything to induce defendant to make the statements. Had another person been shown to have been present on the occasion defendant made these statements, there would have been cause to consider the rule stated and applied by the Court of Appeals in Carr v. State, 17 Ala. App. 539, 85 So. 852, 854. Even under the evidence recited in the bill of exceptions, it was a question for the jury whether defendant's killing of McCoy was justified or not, and if not, of what degree of homicide he was guilty.
No motion for new trial appears to have been made, and, of course, there was no request for the affirmative charge for defendant. There were no exceptions taken to the oral charge of the court. Besides the matters of which account has been taken, the only possible bases for error relate to the refusal of defendant's requested instructions. With respect to justification under the doctrine of self-defense, the defendant's own statement left open to the jury the inquiry whether opportunity to retreat was available, within the law's exaction, as a condition to extreme measures, or whether, in "running in under" McCoy's arms, as he prepared to strike defendant with the blade-end of the hoe, defendant "returned" to the affray from a place of safety, and, if so, deprived himself of the benefit of the right of self-defense. Two of these requested instructions took no account of the rule, in proper cases, of duty to retreat. Furthermore, these requests for instructions omitted to take into consideration the phase of the evidence in which defendant admitted he struck McCoy with the mattock after he had felled McCoy with the first blow that did not fracture his skull.
In the oral charge the court instructed the jury fully upon the several degrees of homicide; and also advised the jury that unless the elements essential to a conviction of murder were found to exist, defendant could not be convicted of murder in either degree.
The subject-matter of the two requests for instruction treating, hypothetically, defendant's action under sudden passion, adequately provoked, whereupon, in proper cases, the crime is reduced to manslaughter in the first degree, was substantially given the jury in the oral charge of the court
No error appearing, the judgment must be affirmed.
Affirmed.
All the Justices concur.