Jones v. State , 120 Ala. 303 ( 1898 )

DOWDELL, J.

Sam Jones, Tom Freeman, andRich- - ard Jones, had been jointly indicted at the October term 1898 of the city court of Montgomery for the murder of William Henry Durden, and the said Tom Freeman and Richard Jones asked for and obtained a severance from Sam Jones, and were tried together. This case being called for trial both the State and defendants announced ready. The sheriff was directed by the court to draw the names of the jury out of the hat. He drew out of the hat the name of J. M. Chamley, who was on the special venire served on the defendants. Sam Jones had been tried on the day preceding the trial of defendants, and had been convicted of murder in the first degree and was to be hanged. After said Chamley had answered under oath, being questioned by the court, that he had no fixed opinion as to the guilt or innocence of the defendants, or either of them, which would bias his verdict, he was asked by defendants if he was present in the court and had heard the evidence in the case of the State against Sam Jones, and he answered “yes.” The defendants thereupon challenged the said Chamley as a juror for cause. The court then asked said Chamley if what he had heard would bias his verdict, and he answered ‘ ‘no, ’ ’ and then the court denied defendants’ right to challenge the said juror for cause. To this ruling of the court the defendants excepted.

The juror was examined as to his qualification in the manner provided by the statute. Whether the juror had a fixed opinion as to the guilt or innocence of the defendants, which would bias his verdict, the statute expressly provides, must be determined by the oath of the •juror alone. — Code of 1896, §5017. The fact that he had heard the evidence in the trial of Sam Jones, who had been jointly indicted with these defendants but was separately tried on a severance, was not a ground of challenge for cause, unless a fixed opinion as to the guilt or innocence of these defendants, which would bias his verdict, had thereby been produced on his mind, and this he expressly denied when examined by the court on his voir dire. The ruling of the court in denying to the defendants the challenge for cause was without error.

The defendant, Richard Jones, offered evidence as to his good character, thereby putting the same in issue. Upon cross-examination by the State of the witness Cochran, who testified to the good character of this defendant, he was asked if he had not heard of a previous difficulty that defendant Richard Jones and the deceased had, in which said Richard assaulted deceased with a knife. This question was objected to by the defendant, and the court overruled the objection, -but refused to allow' the witness to state any of the particulars of the difficulty, to which ruling of the court the defendant excepted. The witness answered "yes.” The action by the court in permitting the question and allowing the answer as limited and restricted by the court was free from error.—Goodwin v. State, 102 Ala. 87; Hawes v. State, 88 Ala. 37; DeArman v. State, 71 Ala. 351; Ingram v. State, 67 Ala. 67.

There was no error in overruling the motion of the defendant, Tom Freeman, to exclude the testimony of the witness, Gus Brown, on the ground that it was irrelevant and did not tend to incriminate the defendant Freeman. This testimony was as to a voluntary statement made by defendant to the witness, several days after the pífense was committed, and while defendant was under arrest and being conveyed to prison, giving the details of how the crime was perpetrated by others, he, defendant, being present but taking no part in it. Other testimony had already been introduced tending to connect this defendant with the killing of the deceased. It was clearly relevant and competent to go to the jury, and for the jury to determine whether or not it incriminated the defendant. The jury were not bound to accept the whole statement as true, but only that part they believed to be true.

The defendant Freeman testified as a witness before the coroner’s inquest, and at that time no charge had •been made against him, and, so far as the evidence discloses, he had not been suspected. He testified there without objection. It was competent for the State to show on the present trial what he then testified as being contradictory of his statements made at another time in relation to the homicide. There is nothing in defendant Freeman’s objection as to this evidence, and the court properly overruled it.

The court in its oral charge to the jury, in defining the reasonable doubt, among other things said, "it is a doubt for which a reason may be given,” and to this definition the defendants excepted. This court has settled, that this is one of the correct definitions of a reasonable doubt.— Walker v. State, 117 Ala. 42; Hodge v. State, 97 Ala. 37; Ellis v. State, infra.

There were three written charges requested by the defendants. The first was the affirmative charge in behalf of both of the defendants, and the third the affirmative charge in behalf of the defendant Freeman. Both of these charges the court very properly refused. The second charge was not only misleading, but faulty in other respects. While the jury might have believed under the evidence that one man did the killing, this could not possibly acquit the defendants, if the jury further believed they in any manner aided or abetted or encouraged the killing. The charge ignores this principle of law and phase of the evidence.

We find no error in the record, and the judgment of the city court is affirmed.