Sidebilder
PDF
ePub

CRIMINAL LAW-Continued.

would tend to criminate him, or would constitute a necessary link
in the chain of testimony sufficient to convict him of a criminal
offense; and therefore, on the trial of a common prostitute as a
vagrant, a witness can not be required to answer whether he has
had sexual intercourse with her. Ex parte Boscowitz, 463.

19. Evidence as to former difficulty and threats. As illustrating the con-
duct and motive of the defendant, it is permissible for the prose-
cution to prove the fact of a former difficulty between him and the
person assaulted, and the threats accompanying it, but not the
particulars of that difficulty. Lawrence v. State, 424.

20. Acts admissible as part of res geste. The deceased, a deputy sher-
iff, having been killed by the defendant, whom he was attempt-
ing to arrest, a person who accompanied the officer may testify
that the defendant, immediately after shooting the deceased,
attempted to shoot him also, and knocked him down with his
gun; these acts constituting a part of the res gesta. Seams v.
State, 410.

21. Testimony of witness (or party) as to intention. The defendant tes-
tifying for himself under an indictment for murder, can not be
allowed to state "why he shot the deceased." Ib.

22. Pending prosecution as evidence. On a trial for murder, the prose-
cution having proved threats made by the defendant against the
deceased, in connection with a charge of burglary and larceny
preferred against the former, or growing out of it, the deceased
being one of the two witnesses before the grand jury, and his
name being so marked on the indictment; the indictment in that
case is admissible as evidence for the prosecution, but the merits
or particulars of the charge can not be inquired into. Carden v.
State, 417.

23. Flight of accused as evidence. The flight of the accused on the
approach of an officer, a few days after the commission of the
offense, is a criminative fact which may be proved against him;
and his subsequent voluntary surrender, while it may weaken
the force of the evidence, does not destroy its admissibility and
relevancy. Ib.

24. Impeaching witness by proof of former statements on oath.-When
preliminary examination before

the testimony of a witness, on a pre

a

magistrate, having been reduced to writing and subscribed, is
produced in court on the trial, he can not be questioned as to de-
tached portions of it, without showing or reading to him the en-
tire testimony. Ib.

25. Proof of motive; act of agent as act of principal. The defendant
having been in the employment of a partnership of which the de-
ceased was a member, and having been discharged by their fore-
man about six weeks before the killing; the fact of such discharge
is admissible evidence against him on the trial, as tending to
show a motive for the killing. Morrison v. State, 405.

26. To what witness may testify. On a prosecution for disturbing re-
ligious worship, a person who was present at the time can not
testify that "he was disturbed" by the acts or conduct of the de-
fendants, but must state what their conduct or acts were. Morris
v. State, 457.

27. Rape. A physician who had examined a girl, alleged to have been
raped, ten days after the offense was committed, was asked to
state the condition in which he found her and her clothing. His
answer was confined to the condition of the girl. Just what his
answer was, the bill of exceptions failed to disclose. Held, there
was no error in overruling objection to question and answer.
Evidence as to condition of clothing at such time not having been
FINE AND IMPRISONMENT. See GAMING, infra, 2.

CRIMINAL LAW-Continued.

given, there was no injury from the question. The testimony as
to her personal condition may have been pertinent and compe-
tent. Myers v Staté, 11.

a

28. Reasonable doubt; charge. A charge asserting, in reference to
proving guilt beyond a reasonable doubt, that it is not required to
make proof pro "by an eye witness or to
positive absolute math-
ematical certainty;" and that "if from the evidence the jury be-
lieve it is possible, or that it may be, or perhaps the defendant is
not guilty, this degree of uncertainty does not amount to a reas-
onable doubt;" though involved and argumentative, asserts cor-
rect legal propositions. Lang v. State, 1.

29. Punishment under city charter for violation of municipal ordinance.
Where the charter of a municipal corporation authorizes the
mayor and city council, on conviction of any person for a viola-
tion of a municipal ordinance, "to fine or imprison, or to fine and
imprison, or to sentence to hard labor, and in the event the fine
and costs are not paid to require the offender to work out the fine
and costs under the direction of the city authorities;" a money
fine and a sentence to labor can not be imposed in one and the
same case, unless the labor is added only as a mode of enforcing
payment of the fine. Ex parte Mayor of Anniston, 21.

GAMING.

30. Keeping gaming table; use and keeper thereof. -The statute providing
punishment for keeping gaming table (Code of 1876, § 4208) aims
at the use to which the table is appropriated, without regard to
its appliances or adaptation to any particular game. The person
having possession or custody of the table, authority over its use,
and supervising the gaming is the keeper, or is interested or con-
cerned in keeping it. Bibb v. State, 13.

31. Discretion of jury to assess fine; erroneous charge. A charge in-
structing the jury that they must assess a fine against defendant
if found guilty of keeping gaming table (under § 4208, Code,
1876), is erroneous. Section 4500, Code, 1886, leaves the imposi-
tion of a fine in the discretion of the jury, when the court may, аз
in the present case, in addition to a fine impose imprisonment or
hard labor for the county. Ib.

32. What is a tavern or inn. -A house of public entertainment, used
both as a boarding-house and a tavern or inn, though unlicensed,
is within the prohibition of the statute against playing cards at
a "tavern, inn, public house," &c. (Code of 1876, § 4207; Code
of 1886, § 4052); and the house being prima facie an entirety, a
room in the third story, rented by the year from the proprietor,
is also within the prohibition of the statute, although it is shown
that the tenant sleeps, cats, and cooks his meals there. Foster v.
State, 451.

HOMICIDE.

33. Murder in first degree; Code of 1886, §3725; charge. A charge in
these words, "If the defendant in this county before the finding of
this indictment purposely killed the deceased by striking him
with a base ball bat after reflection with a wickedness or deprav-
ity of heart towards the deceased, and the killing was determined
on before hand, even a moment before the fatal blow was struck,
the defendant is guilty of murder in the first degree," contains
all the statutory elements of murder in the first degree. Lang
v. State, 1.

CRIMINAL LAW-Continued.

34. Homicide of officer making arrest. The killing of an officer, in order
to escape a lawful arrest, is without excuse or palliation. Seams
v. State, 410.

35. Charges as to degree of offense. It is for the jury to say, in a case
of homicide, whether the defendant is guilty of murder in the
first degree, or some lower grade of homicide; and a charge re-
quested in this case, which instructs them that, "if they believe
the evidence, they should not convict him of murder in the first
degree," is properly refused. Ib.

36. Constituents of offense. An intent to murder being an essential ele-
ment of the offense, the issue necessarily involves the inquiry
whether, if death had ensued, the killing would have been mur-
der; but it is immaterial whether it would be murder in the first
or second degree Lawrence v. State, 424.

37. Same; charge as to -To complete the offense, a wrongful act,
amounting to an assault, and an intent to murder, must concur,
and where there is any conflict or uncertainty in the evidence as
to the commission of the assault, a charge instructing the jury
that it is the intent which constitutes the crime, would have a
tendency to mislead; but the assault being clearly proved and
not disputed, such instruction could not mislead. Ib.

38. Manslaughter in first degree. An intention to take life is not a ne-
cessary ingredient of manslaughter, even in the first degree.
White v. State, 421.

39. Homicide by careless act. -Gross carelessness, even in the per-
formance of a lawful act, causing an injury which results in
death, is at least manslaughter. Ib.

40. Same; case at bar. The deceased having been thrown from a
handear, on which he was riding with the defendant and others,
and which was stopped suddenly as the defendant leaped from
it, the evidence tending to show that he put his foot on the brake
as he did so; a charge asked, instructing the jury that, if the
defendant, "although he may have stepped on the brake in jump-
ing from the car, did not know the result of stopping the car
suddenly, then he would not be guilty," is properly refused. Ib.

41. Charge as to duty to retreat in case of homicide. A charge given,
which asserts that "if the deceased was the assailant, the party
assailed must retreat, unless retreat will endanger his safety, and
must refrain from taking life, if there is any other reasonable
mode of escape," asserts a correct proposition. Morrison v.
State, 405.

42. Drunkenness as excuse, or in mitigation of killing. -Intoxication
may reduce a killing to manslaughter, when it renders the per-
son incapable of forming or entertaining the specific intent which
is an essential ingredient of murder; but a charge requested,
which instructs the jury that, if the defendant, when he fired the
fatal shot, "was intoxicated, or under the influence of liquor, they
may look to this fact in determining whether he acted in the
passion and heat of blood, excited by the provocation of the blow
he had received, or from malice,” does not come within this prin-
ciple, and is properly refused. Ib. 405.

INDICTMENT. See RAPE, infra, 55.

43. Sufficiency ncy of indictment; averment of means in alternative. -In an
indictment for murder, it is permissible to allege in the alterna-
tive, that the offense was committed by different means (Code of
1886, § 4383); as, "by striking him in the head with some hard
substance unknown to the grand jury, or by choking him with a
piece of fuse or cord." Wilson v. State, 426.

CRIMINAL LAW-Continued.

44. Amendment of indictment; misnomer.-An indictment can be amend-

ed by correcting a misnomer, only "with the consent of the de-
fendant." (Code of 1886, § 4389); and this consent must be
affirmatively shown by the record, and will not be inferred from
mere silence, or failure to dissent. Shiff v. State, 454.

45. Variance in description of article stolen.--Under an indictment for
the larceny of a "gold watch,” a conviction may be had on proof
of the larceny of a watch only ten carats fine, which is called a
gold watch by the public generally, though it is not so designated
by jewellers. Pfister v. State, 432.

46. Ownership of stolen property; variance.--When the indictment
alleges the larceny of property belonging to the husband, and the
proof shows that it belongs to the wife's statutory estate, there
is no fatal variance, since the ownership may be laid in either,
unless the Code of 1886 has changed the law in this particular;
and if it has effected a change (which is not decided), this court
will presume, in favor of the ruling of the lower court, that the
offense was committed before the new law became operative, un-
less the record repels the presumption. Robinson v. State, 434.

47. Form of indictment and proof,-An indictment which charges that
the defendant "sold vinous or spirituous liquors without a license,
and contrary to law," being in the form prescribed in the stat
ute (Code of 1886, § 4037), is sufficient, and under it any viola-
tion of a special or local prohibition law may be proved. Bogan
v. State, 449.

48. Some; exception in favor of physicians and druggists--If the de-
fendant was a physician or druggist, and lawfully disposed of
liquor under the restrictions allowed by the local law, this was
matter of defense, and it was not necessary that the indictment
should negative it. Ib. 449

49. Sufficiency of indictment.--An indictment for selling or giving
liquor to a minor, under the Code of 1876 (§ 4205), was required
to negative the requisition of a physician for medical purposes;
but, under the act approved February 26th, 1881, it was required
to negative also the consent of the parent, guardian, or person
having the management and control of the minor. Page v. State,
446.

LARCENY. See INDICTMENT, infra, 46; SELLING MORTGAGED
PROPERTY, infra, 59.

JURY.

50. Special venire in capital case. When an order for the trial of a
capital felony is made during one week, and the trial is set for a
day of the next week, thirty persons being drawn by the court
as special jurors, under the provisions of the law approved Feb-
ruary 28th, 1887, (§ 11); these persons, together with "the re-
gular jurors drawn and summoned for the next week," constitute
the special venire. Morrison v. State, 405.

51. Organization of petit jury. On the organization of a special jury
in a capital case, some of the names drawn and summoned be-
ing left out of the box (or hat) by inadvertence, and the mistake
not discovered until all the names in it had been drawn out with-
out completing the jury; the court may properly refuse to have
talesmen summoned, until all the omitted names, being placed
in the box (or hat), have been drawn out and passed on; and the
jury being still incomplete, the deficiency may then be supplied
by talesmen. Ib. 405.

52. Same; order for talesmen. Under the uniform practice of the lower

CRIMINAL LAW-Continued.

courts, an order for the summons of talesmen to complete a petit
jury is not required to be entered of record, but may be given
orally; and this court sanctions that practice. Ib. 405.

LIQUOR LAWS. See CONSTITUTIONAL LAW, 7; INDICTMENT, infra,
47, 48, 49.

that two

53. Constituents of offense.--A conviction may be had for selling or
giving liquor to a minor (Code of 1876, § 4205; Code of 1886,
§ 4038), on proof that the minor and his uncle came into the de-
fendant's saloon, and the uncle called for two drinks; that the
defendant set out a bottle of whisky, with two o glasses;
drinks were poured out, for which the uncle paid, and gave one
of them to the minor, who thereupon drank it in the defendant's
presence. On these facts, although the defendant may not (or
could not) have known when he furnished the liquor, that one of
the drinks was intended for the minor, he must reasonably have
understood that such was the intention, and that was sufficient to
charge him with notice. Page v. State, 446.

PEDDLERS AND ITINERANT DEALERS.

a

54. Revenue license required of peddlers and itinerant dealers.-A ped-
dler's license, issued to a partnership of which the defendant is a
member, is
full protection to him for peddling anywhere in
the county, but not for carrying on the business of a transient
or itinerant dealer in goods, wares and merchandise. (Code of
1886, § 629, subd. 29, 34); and being indicted for carrying on that
business without a license the prosecution may prove that he
had in person made sales in other counties, and had gone from
one county to another dealing in goods; and while there can be
no conviction without proof of some act done, in prosecution of
the business, in the county in which the indictment was found,
it is not necessary to prove sales in more than one place therein.
Shiff v. State, 454.

REASONABLE DOUBT. See EVIDENCE, infra, 28.

RAPE. See EVIDENCE, infra, 27.

55. Indictment for rape. The use of the word female in an indictment
for rape means the same thing as woman, and does not render the
indictment insufficient. Myers v. State, 11

56. Constituents of offense; force and consent. To constitute the crime
of rape, it must be shown that the act was done with force, actual
or constructive, and against the woman's consent, express or
implied. If she was at the time unconscious, or in a state of stu-
pefaction, force is necessarily involved in the criminal act itself,
and if she is idiotic, or the subject of mania, she is regarded as
incapable of consenting; but the mere fact that she is weak-
minded does not render her incapable of consenting. McQuirk v.
State, 435.

57. Same; conduct implying consent. Since the consent of the woman
may be implied as well as express, a charge asserting that, "if
her conduct towards the defendant, at the time of the alleged rape,
was such as to create in his mind the honest and reasonable be-
lief that she had consented, they must acquit the defendant," is
a correct legal proposition, and its refusal is error. Ib. 435.

58. Proof of character of prosecutrix.--The character of the prosecu-
trix for chasity, or the want of chastity, is relevant evidence as
bearing on the question of consent; but the impeachment of

« ForrigeFortsett »