The evidence, as disclosed by this record, tends to prove that the defendant, the deceased, and several other men were congregated at an isolated place in the forest on a mountain near a whiskey still, that all of them were drinking "moonshine" whiskey. It appears that all of them were around a fire and, for one cause or another, there arose the difficulty which resulted in the fatal shooting of Joseph Camron, one of the party, by this defendant.
The issues were submitted to the jury, under a full and explicit charge of the court as to the law of the case. The finding of facts was for the jury and the court properly refused to give, at the request of defendant, the general charge, and, the evidence being in conflict, the court properly overruled the motion for a new trial on the ground that the verdict was contrary to the evidence.
At the beginning of the trial the following proceedings were had:
"The attorney for the defendant moved the Court to quash the jury venire in this cause and assigned the following grounds first. Said venire was not drawn according to law. 2. For that at the time when the regular jury became insufficient and other jurors were drawn to add to the regular jury such said special additional jurors were not drawn according to law. 3. For that there were insufficient regular jurors drawn on the regular venire this week of court and that thereafter other jurors were drawn which said additional jurors were not drawn according to law and consists of persons living more than five miles from Moulton, the County Seat. 4. For that when the regular jurors, the list of the regular jury were insufficient, other jurors were summoned living more than five miles from Moulton, the County Seat.
"In support of said motion the defendant at this time offered the following testimony:
"George Byars, Sheriff, being duly sworn, testified:
"The Court overruled the motion and the defendant then and there duly excepted."
The special juror added to the venire was qualified as a juror for Lawrence County. The only objection to this juror was that being drawn as a talesman he resided more than five miles from the court house. Section 8627 of the Code of 1923 is directory only to serve the convenience of the court and when a talesman drawn and summoned to serve as a juror is otherwise qualified, the fact that such talesman resides more than five miles from *227
the court house is not cause for challenge or reversal. Edwards v. State,
Refused Charge Z was properly refused. The duty to retreat rests on a defendant in a homicide case, unless the defendant was free from fault in bringing on the fatal difficulty and could not retreat without apparently increasing his peril. In addition to this, there must have appeared to him impending peril to his life or limb. 11 Alabama Digest, Homicide, 300 (13).
Other questions raised have been examined and found to be without merit.
There is no error of a reversible nature. Let the judgment be affirmed.
Affirmed.
NOTE. The foregoing opinion was prepared by the late Judge SAMFORD. Since his untimely death, this court has considered this case En Banc. We are clear to the conclusion that said opinion is correct in all things; therefore, it is hereby approved and is made and adopted as the opinion of this court.
The evidence for the State, if believed beyond a reasonable doubt, was sufficient to sustain the verdict of conviction and the rulings of the court on the admissibility of the testimony were, in each instance, without prejudicial error.
The insistence that there was error, to the prejudice of appellant, in the refusal of his special written charge, "Z", is likewise without merit. This charge does state a correct principle of law, as was ably discussed by Justice Brown in Walker v. State,
Opinion extended and application overruled.