Barnes v. State

Nov 15, 1901

Versions:134 Ala. 36

TYSON, J.

Thе defendant was convicted of mansloughter in the second degree, under an indictment сharging murder in the first degree. Before entering *41upon t-lie trial a motion was made to quash the venire because the return of the sheriff ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍thereon shоwed that one of the special jurors, whose name wаs on the list served upon defendant, was “not found.” This motion was overruled and properly so-. — Parsons v. The State, 81 Ala. 577; Webb v. The State, 100 Ala. 47. The cases of Thomas (94 Ala. 74) and Ryan (100 Ala. 108) rеlied upon by appellant have no application here. In those (‘ases names of ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍persons were upon the list servеd upon defendant who had not been summoned as regular pc it jurors for the week in which the case was set for trial.

There was testimony affording an inferencе for the jury that the killing was malicious and unlawful; if. not mаlicious, that it was intentional; or if not intentionаl, that it was the result of the unlawful pointing of a loaded pistol by defendant at deceаsed. Charges S. and T. were, therefore, properly refused.

Section 4342 of Crim. Code makes it a. misdemeanor foir any person to present ati another any gun, pistol, or othеr fire arm, whether loaded or unloaded. Confessedly, if the defendant intentionally ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍pointed the pistol at the deceased, without аny intention whatever to take her life but by aсcident it was discharged producing her death, he would be guilty of the crime of which he was convicted. — Johnson v. The State, 94 Ala. 35; Sanders v. The State, 105 Ala. 5. Thе jury might have well believed that the death of deceased was unintentional or accidental, and yet have also believed that the fatal shot was fired by defendant in the. cоurse, of the unlawful'act of presenting the, pistol at the person of the deceаsed. There was, therefore, no error in refusing written charge No. 2 requested by defendant.

Charge “Z” was bad for two reasons. . The first is, that it. was an attempt to reply to the argument made by the solicitor. Secondly, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍it asserted that thеre was no evidence in the case of an intentional pointing of the pistol at deceased by defendant.

Charge X has been so often condemned that it is needless tо say more of it.

The bill of exceptions рurports to contain all the. evidencе ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍introduced upon the trial. Charge 1 should havе *42been, given oil account of tlie failurе to prove the venue of the homicide. — Harvey v. The State, 125 Ala. 47; Brown v. The State, 100 Ala. 92; Randolph v. The State Ib. 139.

The remaining exception reserved by defendant, which, however, is not insisted upon, relates to the admission in evidence, of a conversation between defendant and ¡Springer overheard by the witness Allen who testified to it. There was clearly no error ini its admission.

For the error pointed out the judgment must be reversed.

Reversed and remanded