Levy v. State

Indictment for Murder. 1. Arraignment'after reversal of judgment of conviction. — After the reversal of a judgment of conviction, a re-arraignment of the prisoner is not necessary, as the eause stands precisely as if that judgment had never been rendered. 2. Organization1 of petit jury. — When a juror is set aside, at the instance of the prisoner, because his name was illegally written on the list furnished to the prisoner, the refusal of the court to cause a talesman immediately to be summoned to supply his place, if erroneous, is not a reversible error when the record shows that the jury was completed without exhausting the original venire. 3. Weight of declarations or confessions of prisoner. — The law indulges no presumption as to the truth or falsity of declarations or confessions voluntarily made by the accused after his arrest, and given in evidence against him on his trial, but leaves their credibility and weight to be determined by the jury.

From tbe City Court of Mobile. Tried before the Hon. C. F. Moulton. The prisoner in this case was indicted at the February Term, 1872, of said City Court, jointly with one Wash Harris,'for the murder of George James; was arraigned, tried, and convicted at a special term held in March, 1872; but the judgment of conviction was set aside by this court, and the cause remanded at its June Term, 1872. See the case reported in 48 Ala. 170-4. A second trial was had at the February Term of said court, 1873, when the defendant reserved the following bill of exceptions : 44 This cause coming on for trial, the sheriff proceeded to draw the names of the jurors specially summoned on the venire. During the said drawing, the name of Alexander Greenwood was drawn and called, and he answered to his name; but it being shown to the court that the name of said Greenwood was illegibly written on the copy of the venire served on the defendant, the court ordered the said name to be discarded. The defendant then moved the court to order the sheriff to summon forthwith another juror to supply the place of said Greenwood; which motion the court overruled, but stated that if the venire was exhausted before a jury was obtained, the order would be made, to which refusal the defendant excepted. The jury was completed without exhausting the venire. “■ The following was all the evidence in the case : John A. Cooper, the first witness for the State, testified as follows: ‘ I am a justice of the peace for Mobile County, and reside at Mount Vernon. On the morning of the 10th November, 1871, I was called upon to hold an inquest on the body of George James. He was dead, with eighteen buckshot wounds in his side. His body was found about one hundred yards from the corner of Cyrus Sullivan’s house, in the County of Mobile.’ Richardson, the second witness for the State, testified as follows : ‘ After the accused had been arrested for the murder of George James, I was deputized as an officer to bring him and Wash Harris to the jail in Mobile. While on the way there, the accused called me aside, and said that he wanted to tell me where the gun was that killed George James, and that it was under a log on the right hand side of his house near Mount Vernon. I went there with two other persons and searched around the house, and the gun was found where he said it was.’ The gun was produced and identified by the witness. Berry Cannon, the third witness for the State, was a gunsmith, and identified the gun as one which he had repaired for the accused. John Baptiste, the fourth witness for the State, testified: 4 When the defendant was put in jail I went there to see him, and he made a confession to me. He told me that he and Wash Harris started out from his house on the night of the killing, without the intention of harming any one; that they met George James near Cyrus Sullivan’s house ; that Wash advanced upon him and struck him with a gun, and shot while he (James) was running away; that after Wash fired, he fired off his gun too, just for fun, and without pointing it at or intending to hurt any one; that when Wash struck and fired, he was sitting on a log, about twenty steps behind him. At the time of the occurrence, Wash Harris and the defendant lived together in said defendant’s house. It was a dark and drizzling night on which James was killed. There had been a public meeting of colored people that day. Witness knows the gun now shown him to be the defendant’s gun, and has seen him with it before James was killed.’ The State here rested. Tom Pettway, the first witness for the defeirce, testified: ‘ I was with George James the night he was killed; started with him from the house of Cyrus Sullivan, to go to the arsenal. When we got to the corner of Sullivan’s fence, Wash Harris met us, and immediately struck George James with a gun. We both then started, and ran from him, when two shots were fired, and James was killed. After the first shot, and before the second, Wash called to George,” Come back here, you d— son of a b — .” Before Wash struck, I saw another man sitting on a log about thirty yards behind him ; don’t know who it was.’ Several witnesses for the defendant testified to his good character for peace and quietude. This was all the evidence in the case. The defendant asked the court to instruct the jury as follows: ‘1. If you believe, from the evidence, that the confessions made by the prisoner were made while under arrest, and voluntarily, then the presumption of law would be that his confessions are true, as stated by him ; and if the circumstances in evidence are insufficient to overthrow the presumption of the truth of the confessions, then you should find for the defendant.’ ‘ 2. If there should be a reasonable, well grounded doubt as to whether this presumption of law was overturned by the circumstances in the case, then the accused would be entitled to the benefit of the doubt, and should be acquitted.’ The court refused these charges, and the defendant excepted to their refusal.”