
    Stevens et al. v. The State.
    
      Indictment for Murder.
    
    1. Trial and its incidents; sufficiency of sentence of court on conviction for manslaughter. — Where, on a trial under an indictment for murder, the jury “returns a verdict of guilty of manslaughter in the-first degree, ■ fixing the punishment of the defendant at imprisonment in the penitentiary for two years, a sentence of the court which follows the minute entry showing the return of the verdict of the jury, and after reciting that the defendant had.nothing to say why the sentence of the law should not be, pronounced upon him, then reads: “It is therefore, considered by the court and it is the judgment and sentence of the court that the said defendant [naming him] be imprisoned in the penitentiary of the State’ of Alabama for a term of two years,” ’ is valid and sufficient to show that the judgment of the court" was invoked and pronounced upon the guilt of the defendant.
    
      2. Same; sufficiency of verdict of, jury. — Where two defendants are jointly indicted and tried for murder, a verdict of the jury that “We, the jury, find the defendants guilty of manslaughter in the first degree, and fix the punishment at two years’ imprisonment,” if defective by reason of ambiguity, such defect is removed by the jury stating, in answer to questions asked by the court in the presence of the defendant, that the word “defendants” included both the defendants; and it is permissible for the court to remove any ambiguity by making such inquiries of the jury.
    3. Homicide; conspiracy; admissibility of evidence. — On a trial under an indictment for murder, where it is shown that the killing occurred just after a suit between the defendants’ mother and Uie deceased had been continued, and there was evidence tending to show a conspiracy between the defendants, their father and their brother-in-law to kill the deceased, it is competent for the State to show that just before the continuance of the case, when the defendants’ mother asked for subpoenas for witnesses, the brother-in-law of the defendants stated to the justice before, whom the case was pending that he need not issue th^ subpoenas, that “we intend to fix it up in our own way;” it being shown that just after this statement the deceased walked out of the room with the defendants and their said brother-in-law. and the killing ■ occurred a few minutes afterwards.
    4. Same; same; same.- — In such a case, where it is. shown that on the night before the killing, the defendants staid at the. house of their brother-in-law, who went with them the next day to the trial, and where the brother-in-law, on, the direct examination, testified that there was no conspiracy between him and the defendants, it is competent for the State to ask him on cross examination, as to whether or not. on the evening of the killing, he told a certain named person that the defendants would be at the .place of the trial “and hell would be raised”; and upon the witness denying having made such statement, it is competent for the State, for the purpose of impeachment, to prove by such person that the statement was made by said witness.
    5. Same; same; same. — In such a case, after one of the defendants had testified that he .was at the place of the difficulty as a witness in the suit pending between his mother and the deceased, and knew what the contract was between his mother and the deceased, it is competent for the State, on cross examination, to ask such defendant what was said in the contract; such question being directed to the credibility of witness’ testimony.
    
      6. Homicide; charge of court to jury. — On a trial of two defendants under an indictment for murder, where there is evidence tending to show that there was a conspiracy existing between the defendants to kill the deceased, and that one of the defendants did not shoot at the deceased at all, a charge which instructs the jury that the other defendant had the same right to act in self defense as if he had been first attacked, even though the evidence shows that the deceased had attacked his brother and he had interfered to prevent the deceased from further attacking him, is erroneous and properly refused.
    7. Same; same. — In such a case, a charge is free from error which instructs the jury that “if you oelieve from the evidence beyond a reasonable doubt that there was a conspiracy between the defenuants and the father to take the life of Vester Henson [the deceased] or do him great injury and the father of defendants fired the fatal shot that killed the deceased, then they would be equally guilty with the father, if the shooting by the father was done in carrying out the conspiracy previously entered into by him.”
    8. Sanie; same. — In such a case, it is not error for the court to instruct the jury as a part of its oral charge that “if you believe from the evidence beyond a reasonable doubt that these defendants entered into a conspiracy to kill the deceased, and the deceased was killed with a pistol, you would find them guilty of murder in the second degree, if it was done unlawfully and with malice.”
    9. Same; same. — In such a case, where there was evidence tending to show that while there were several shots fired at the deceased by the defendants with pistols, that the fatal shot was fired by the father of the defendant from a rifle, and that there was a conspiracy between the defendants and their father to kill the deceased, a charge which instructs the jury that if they believe that the deceased “was killed by a shot from a rifle and not with a pistol, you must acquit the defendants,” is erroneous, in that it pretermits all reference to a conspiracy.
    10. Homicide; áharge as to self defense. — On a trial under an indictment for murder, a charge which instructs the jury that “in order to invoke the doctrine of self defense defendants must have been free from fault in bringing on the difficulty — • reasonably free from fault will not do,” is free from error.
    Appeal from the Circuit Court of Walker.
    Tried before the Hon. A. H. Alston.
    Tlie appellants, Adolpbus and Walter Stevens, were jointly indicted for murder in the second degree for killing one Vester Henson, by shooting him with a pistol,- was convicted of manslaughter in the second degree and sentenced to three years’ imprisonment in the penitentiary.
    The evidence for the State tended to show that on the day of the killing there was to be a trial of a case between the mother of the defendant and Vester Henson, the deceased; that this case was a suit in a justice of the peace court, in which the defendant’s mother was suing the deceased for rent; that when the case was called for trial it 'was continued, but before it was continued, the defendant’s mother asked for some subpoenaes to be issued for witnesses; that after the case was continued Walter Stevens, one of the defendants, got up in the room where the people was assembled for trial and stepped over to the deceased and said that he wanted to see him; that the deceased walked from the house with Walter and Adolphus Stevens and the defendant; that as they walked along the defendants were cursing at the deceased, and upon Adolphus asking him why he had treated their sister as he had, he denied having done anything wrong towards the defendants’ sister; that thereupon Adolphus replied that he intended to whip him for it; that the .deceased pulled 'his knife and cut at Adolphus, who stepped backwards and stumbled over a bush; that thereupon Walter Stevens stepped between them and the shooting commenced; that while the shooting was going on, Jesse Stevens, the father of the defendants, wras seen to level his Winchester riñe at the deceased and fire it, and upon the firing of the rifle of Jesse Stevens, the deceased fell. There was conflict in the evidence as to whether the decased or Walter Stevens fired the first shot.
    The evidence for the defendants tended to show that neither of them fired at the deceased until after he had cut at Adolphus Steven® with his knife and cut his collar, and that after cutting at Adolphus Stevens, the deceased cut Walter Stevens’ throat and shot him twice; that thereupon Walter Stevens pulled his pistol and began shooting at Henson; that Adolphus Stevens did not shoot at all. . The defendants, as witnesses in .their own behalf, testified that there was no conspiracy between them and their father,'and John M'organ,’.their brother-in-law, to kill "the cleceasefl. , . . . ...
    During the examination of the justice of.the. peace before whom the case, between the defendants’ mother and the deceased was pending for. itjrial, and after he had testified .that, .the defendants’ mother asked for subpoenaes for witnesses, the State asked said witness the following question: “Did John Morgan, a brother-in-law . of defendants, say anything, about issuing a subpoena in the defendants’ presence?” The defendants objected to this question upon the. ground that it was irrelevant, immaterial, and not binding on the defendants. The court overruled the objection, and the defendants excepted. The witness answered that John Morgan said in the presence of ■ the . defendants . “By Cod you need not.be issuing these damp old subpoenaes. We intend to fix it up.in our own way.” .The court overruled the defendants’ motion, tq exclude this answer, and to this ruling the defendants duly excepted. It was shown by the evidence that John .Morgan, was a brother-ipdaw of the defendants and lived at Horse Greek, nine or ten miles. away; that the night before the difficulty the defendants came to the house .of John Morgan and spent the. night, .and .that he came to the place where the killing occurred .with the defendants the next morning,. , . ,
    John Morgap was introduced as a, witness for the defendants, . and. testified that he was. present at the shooting, but there was no .conspiracy existing between him and the defendants to kill the deceased. The solicitor asked the witness the following question: “Did you tell Andy Pebley the evening before the shooting at Horse Creek that the Stevens boys would be out on the night train apd hell would.be raised up above the next day?” The defendants objected to this .question upon the ground that they were not shown to be present at the time the statement asked about was made, and were not shown to have known anything about the conversation. The court, overruled the objection, and tlie defendants duly - excepted. The witness answered that he did not malee said .statement'to Said'Pebley.-
    The-‘said Andy Pebley.was introduced.as a witness, • and he was asked by the State the-following question: “Did John Morgan tell you the evening before the' shooting at Horse Creek that the Stevens boys would be out on the night train and hell would be raised tip above the next day?” The defendants objected- to this question upon the ground that it called for incompetent and hearsay testimony. The -court overruled the objection, and 'the defendants excepted. The witness answered that John Morgan did make said statement at the time ■ specified.
    J. Henson, the father of the deceased, -when- exam-, ined as a witness, identified certain clothes which were - shown him as the same which were worn by the deceased when he was shot, and stated that- they had- been in his possession ever since the killing and -were -in the ' same condition as they were at the time of the shooting.
    A witness, Dan Rhodes-, was, during -Ms examination, -shown the same clothing, and he identified them as the clothing Vester Henson had on at the time he-was shot. Thereupon the State offered -the clothing -in evidence, and defendants objected .on the ground.that the clothes had not been properly identified, -and that the witness had not- been in possession of .the clothes:The court overruled |the objection, and -the defendants duly excepted.
    The defendants separately excepted to the following-portion of the court’s oral charge to the jury: (B.) “In order to invoke the doctrine of -self-defense defendants must have been free from fault in bringing -on the difficulty, reasonably free from fault will not do.” (C.) “If you believe from the evidence- beyond a reasonable-doubt that there was a conspiracy between the defendants and the father to take the life of Vester Henson (the deceased), or do him great injua-y, ■ and the-father of defendants fired the fatal shot that killed the deceased, then they would be -equally guilty with the-father, if the shooting by the father was done in carry-int out the conspiracy previously entered into by them.” (D.) “If you believe from the evidence beyond a reasonable doubt that these defendants entered into a conspiracy to kill the deceased, and the deceased was killed with a pistol, you would find them guilty of murder in the second degree, if it was done unlawfully and with malice.”
    The defendants requested the court to give to the jury the following written charges, and separately excepted to the court’s refusal to give each of them as asked: (12.) “I charge you, gentlemen of the jury, that Walter Stevens had the same right to act in self-defense as If he had been first attacked, even though the evidence shows that Yester Henson had attacked his brother, Dolph Stevens, and Walter had interfered to prevent Henson from further attacking Dolph Stevens.” (A.) “I charge you that if you believe that Yester Henson was killed by a shot from a rifle gun and not with a pistol, you must acquit the defendants.”
    The judgment entry was as follows: “This, the 19th day of March, 1902, came C. W. Ferguson, solicitor, who prosecutes for the State of Alabama, and also came the defendants in their own proper persons, and by attorneys, and the said defendants being duly arraigned upon said indictment for their plea thereto says in person, that they 'are not guilty, issue was joined on this plea, thereupon came a jury of good and lawful men, to-wit: T. B. I-Iyche and eleven others, who being empannelled and sworn according to law, upon their oaths do say: ‘We, the jury, find the defendants guilty of manslaughter in the first degree, and fix the punishment at two (2) years’ imprisonment.’ The jury being asked by the court in open court in presence of both of the defendants, and their counsel, if the word ‘defendants’ included both defendants, they answered that the verdict included both defendants, and fixed the punishment of each at two (2) years’ imprisonment. And thereafter before the jury was discharged, the defendants demanded a poll of said jury on said verdict, and each of said jurors separately stated that- that was his verdict.” The judgment entry then proceeded to adjudge the defendants guilty of manslaughter in the first degree, etc. There was a motion made by the defendants in arrest of judgment, upon the ground that the verdict returned by the jury was insufficient and uncertain in that it does not state whether both of the defendants or each of them shall suffer one year, so as to make two years, and that it fails to state what punishment each of the defendants shall suffer. This motion was overruled. Subsequently the court rendered its sentence upon the defendants, which was in Avoids and figures as follows: “And noAV upon this, the 22d day of March, 1902, Walter Stevens, the defendant, being in open court and being asked by the court if he had anything to say why the sentence of the law should not now be pronounced upon him, says nothing. It is therefore considered by the court, and it is the judgment and sentence of the court that the said defendant, Walter Stevens, be imprisoned in the penitentiary of the State of Alabama for a term of two (2) years.” A similar sentence was passed upon the defendant, Adolphus Stevens.
    D. A. McGregor, J. T. Si-iugart and Coleman & Bankhead, for appellant.
    The verdict should be the jury’s conclusion on considering each defendant’s case by itself. And if guilty against all, it should be in terms which can be construed as several. — Code, § 1036. While several defendants jointly indicted may be jointly tried, the verdict and judgment should be several. A general verdict imposing a joint fine or punishment is improper, and a venire ele novo should be awarded. — 22 Encye. PI. & Pr., 847.
    It is necessary, before evidence of declarations by conspirators can be admitted that a foundation should be laid by proof addressed to the court, prima facie sufficient- to establish the existence of such a conspiracy. Owens v. The State, 74 Ala. 401; Hall v. State,, 51 Ala. 9; Hunter v. State, 112 Ala. 77.
    Chas. G. Broavn, Attorney-General, .for the State.
    The verdict of the jury Avas sufficient, and the sentence of the court Avas sufficient. — Wilkinson v. State, 106 Ala. 27. The record conclusively shows that the punishment of tAvo years on each of the defendants Avas awarded by the,verdict of the jury. It is not essential ■ to the validity or sufficiency of tbe verdict that it. should be in writing. — State v. Underwood, 2 Ala. 744; Meadowcroft v. State, 163 111.' 56; White v. State, 30 Ala. 520.
    The court did not err in its rulings upon the evidence. Martin v. State, 89 Ala. 115; Turner v. State, 97 Ala. 57; Elmore v. State, 110 Ala. 93; Tanner v. State, 92 Ala. 1. .
   TYSON, J.

Upon, the authority of Driggers v. The State,(123 Ala. 46), and Wilkinson v. The State (106 Ala. 28), we must hold that there is enough expressed in the minute entry to show that the judgment of the court was invoked and pronounced.upon the guilt of the defendants. If it be conceded that the verdict of the jury as. expressed in writing was too uncertain and indefinite, a point we do not decide, to support- a judg-. ment of conviction, this defect was cured by what was said by them, in explanation of the written verdict. Since verdicts may be ore temos, the oral statement by the jury of their findings, in connection .with the written verdict, was entirely ..sufficient and eliminated all ambiguity, if it existed, in the latter. This principle is clearly announced in the case of The State v. Underwood, 2 Ala. 744, where it was said: “It is not essential to a verdict, that it should be written; the jury may announce it to the court ore temos, or upon paper at their pleasure; and, however rendered, upon the suggestion of the judge, it may be varied by the jury, in its terms, so as to make it speak their intentions. And the change, thus made in the finding, need not be noted in writing, even if it be such a® to entirely supersede the verdict.” See also Robinson v. The State, 54 Ala. 86.

The record affords abundant evidence from which the jury were authorized to infer that there was a conspiracy between the father, the brother-in-law of these de-. fendants and the defendants themselves to kill the deceased. In the light of the results which followed almost immediately upon the declaration of Morgan, the brother-in-law, made in their presence, to the justice of the peace, it was clearly inferable that he had- reference' to defendants as well as to their father who are shown to have participated in the deadly combat.

In view of Morgan’s testimony on direct examination that there was no. conspiracy between. Mm and the defendants, it was entirely competent for the prosecution for the purpose of impeachment, after proper predicate laid, to prove by Pebley that he (Morgan) made the statement which he denied maMng. So, too, in view of the inference afforded by the evidence- that defendants went from their home, in an adjoining county to the place-of'the'difficulty, for the purpose of provoking a fight with the deceased, and in view of the statement of the defendant, Adolphus, that he was at the place of the difficulty as a witness in a suit pending between his mother and deceased,, and knew what the 'contract was 'between his mother and deceased, it was. competent for the solicitor on cross-examination, to further ask lfim what was the-contract between-his mother and the deceased, for the purpose of showing, if he could, that defendant’s presence was not for the'purpose of giving -testimony as a-witness, hut was in furtherance of the common design to 'slay the deceased. "

The only other exception reserved upon the trial to the admission of evidence, was the action of the court in permitting the State to introduce the clothing worn by deceased when killed. This exception is not urged in argument. Besides, there is manifestly no merit in it, the clothing having been, fully identified. .

Charge 12 refused to defendants is so clearly had, no further comment is necessary.

Charge A pretermits 'all reference to a conspiracy, which the testimony tended to show'- existed between the defendants and their father to kill the deceased, and was, therefore, properly refused.

There -was no. error in those portions of the oral charge of the court excepted to.

There being no error in the record, the judgment must be affirmed.... .  