122 Ala. 21 | Ala. | 1898
— The act of February 28th, 1887, copied into the Criminal Code of 188G, p. 132,- was a general law notwithstanding the exclusion of some counties from its operation. Its provision directing the jury commissioners to state on the list of jurors selected by them the names and residences of the persons so selected, is embodied in section 4982 of the present Code, and Avas re-enacted by the adoption of the Code simultaneously Avith the other sections of the same chap
By section 4997 of the same chapter the provision in question is made directory merely, and the same section prohibits objection to any venire facias for a petit jury except for fraud in drawing and summoning the jurors. The defendant’s motion to quash the venire was, therefore, properly overruled.^
We find error, hoAvever, in the admission of the testimony of the State’s Avitness Jeff Gurley, to effect that his son told him that defendant had in his absence been in the draAver from Avhich the money was missed looking for tobacco. This statement Avas incompetent, being-hearsay merely, and its tendency was to injure the defendant’s cause by connecting him Avith the disappearance of the money.
We are unable from anything appearing in the record to see the relevancy of this Avitness’ statement that the defendant’s mother had a Wheeler and Wilson sewing machine.
While it was competent for the State to shoAV the defendant’s conduct in trying to borrow money shortly after the alleged theft, yet the attempt of defendant’s father to borrow a quarter for him appears to have been incompetent, it not appearing that defendant authorized the attempt or Avas present Avhen it Avas made. With these exceptions the rulings of the trial court both in the admission and exclusion of evidence appear to have been free from error.
That Jeff Gurley said a fortune teller told him defendant got the money Avas immaterial, and for that reason Avas incompetent even for the purpose of impeaching the Avitness. Likewise the defendant’s other questions which were not alloAved to be answered called for matters immaterial and incompetent as evidence. The defendant Avas not injured by any action of the court in reference to the statement of Della Vann.
There was no error in the refusal of charges to the defendant. Those numbered 10, 11 and 20 were abstract. Nos. 1, 3, 4, 5, 7, 9, 14, 16 and 17 were argumentative.
For the errors pointed out the judgment must be reversed and the cause remanded. The defendant will be held as the law requires until discharged by due course of law.
Reversed and remanded.