Baker v. State , 122 Ala. 1 ( 1898 )

McCLELLAN, C. J.

— The act of February 28th, 1887, “to more effectually secure competent and Avell qualified jurors in the several counties of this State,” Avitli a pro-A'ision excepting from its operation certain named counties, (Acts 1886-7, pp. 1.51 et seq. Or. Code, 1886, p. 132) was a general and not a local or special laAV: it applied in general terms to the State excepting certain counties, and not to certain counties designated by name to the exclusion of the State generally; and it Avas not Avitliin the saving clause of section 10 of the Code of 1896, but Avas a public laAV of a general and permanent nature Avhich Avas superseded and repealed, or merged by or in the Code provisions covering the same subject found in Chapter 166 of the Criminal Code of 1896, (§ § 4976 et seq.) ; and this trial Avas had under the present Code and not under said act of 1887, The objections taken by defendant’s motions numbered 1, 2, 4, 5, and 6 are emasculated by section 4997 of the Code to the effect that the provisions of the statute invoked by the motion are directory merely. — Thompson v. State, infra, p. 12; Childress v. State, infra, p. 21.

The laAV does not require that the venire should be draAvn one day before the case is set for trial. Motion 7 Avas, therefore, without merit.

Nor did the law require in this case that the jury organised for the fourth week should compose, in part, the special venire. The regular jurors summoned for that Aveek — the order for special venire being made the preA-ious Aveek — Avere properly made part of the special venire. Motion No. 9 Avas, therefore, bad.

It affirmatively appears by the bill of exceptions that the averments of motion 8 were untrue. It, of course, aa as properly disalloAved.

It appeared on the trial that deceased Avas waylaid at night and shot to death from ambush. At least there was no evidence of a rencounter betAveen him and his assailant, and no question as to aggression on his part in the case. That he may have been a “turbulent and blood thirsty character” Avas wholly irrelevant and impertinent.

The facts that deceased and one Lacy had had a difficulty and that Lacy had been arrested on the charge of having killed him did not legitimately tend to show that Lacy, and not this defendant, was guilty of the homicide charged in this indictment.

The witness Adolphus Love Avas examined to show defendant’s flight. To this end he Avas alloAved to testify that “the father of defendant is my tenant. Defendant worked Avith his father last year.” ■ Here the State, against defendant’s objection, Avas alloAved to put this question to the Avitness: “Had not George Baker [defendant] made arrangements with you to make a crop this year?” To this the witness ansAvered that he had. Defendant’s motion to exclude this ansAver was overruled. On cross-examination,, defendant asked this .question: “Hoav do you know that the defendant had made arrangements to make a crop this year?” The witness answered that “he knew it because the father of the defendant had thrown back on him a one-horse crop some time after the defendant left the country.” Thereupon the defendant moved to exclude all the testimony of this witness in regard to the contract that the defendant or his father made with the witness, on several grounds. The motion should have been granted. It is very clear that the testimony as to defendant having' made arrangements with him to make a crop the current year was purely the conclusion — the merest inference— of the witness; and both that part of his testimony and his reference to the tenancy of defendant’s father which was linked to the case only by this inference, should have been excluded.. The witness plainly demonstrated that he knew nothing about defendant having made any such arrangement. Nor was this testimony lacking in prejudicial tendency. That the defendant left the country is not disputed; but whether his departure was flight was a matter of inference for the jury. The natural effect of this testimony — going, as it did, to show that he left in January after having made arrangements to remain during the year — was to strengthen the idea of flight in the minds of the jurors,.

As the case is now presented we do not see the ]>ertinency of the testimony as to the distance defendant’s mother lived from him, or as to defendant’s father having a gun.

We find no error in the other rulings of the court on the competency of testimony, nor in its action upon charges requested.

The remarks of the solicitor to the effect that “the defendant did not deny having left his sick wife, and fleeing the country,” and that “the defendant did not deny that he went to Elijah Langford’s house and made the confession,” were improper, the defendant not having testified as a witness in the case; but it does not appear that the court’s action in respect of them' was invoked or had.

Reversed and remanded.