| Ala. | Dec 15, 1878
It is settled law in this court, that the decision of a Circuit Court refusing a change of venue in a criminal cause is not subject to revision here. — Kelly v. The State, 52 Ala. 361" court="Ala." date_filed="1875-06-15" href="https://app.midpage.ai/document/kelly-v-state-6509027?utm_source=webapp" opinion_id="6509027">52 Ala. 361.
After pleading not guilty to an indictment for murder, which was in no respect insufficient, and.taking part in empanneling a jury sworn to try him, and examination has been had of the witnesses, it is too late for a defendant to object that the copy of the indictment which had been delivered to him was incorrect; at least, unless it be made manifest that the defendant had thereby been put to a disadvantage which would probably lead to an unjust verdict against him. In this instance, this does not appear. The same evidence that would be required to convict the defendant upon the first count in the indictment which was left out of the copy that was served upon him, would be sufficient for his conviction of the same offense, in nature and degree, under the second count, of which a copy was duly delivered to him. Doubtless, if it should be made to appear that defendant had been taken by surprise, and failed to obtain important evidence on his behalf, or had otherwise been misled to his injury — by the service upon him of a copy materially
The testimony of Pace was not so irrelevant as to be inadmissible on.the part of the State. It was a narration of some remarks made by defendant in a company composed of himself and Foster (the deceased), and one or two others “ a short while before the killing.” But the State failed to elicit' any expression therein of malevolence on the part of defendant towards Foster. The evidence was more in appellant’s favor than against him, and could not have done him any injury on the trial.
Foster was killed in February, 1877. Between two and three years before, according to the testimony of Freeman, Foster and his wife having rode up to a church, near which witness and defendant were standing, the latter said to Foster : “ There is a man I cannot get along with.” This remark by itself was entitled to very little weight, in comparison with other evidence in the cause. But we cannot say that it was not “ legal or lawful evidencewhich was the reason assigned for objecting to it. It was relevant, and therefore admissible.
It was proved that on the morning of the day of the homicide, defendant borrowed a “ Joseph Lodgers’ knife,” having a single blade about four inches long, from a neighbor, saying, “I may need it.” He was then starting on horseback to town, on return from which, on the night of the same day, the homicide was committed. After the three other persons in the company had started he overtook them and furnished money with which a bottle of whisky was bought, of which three out of the four (himself, Foster and another) drank until some, if not all of them, were intoxicated. Defendant, after the drinking, rode along with Foster, whose brother Jack he soon began to abuse. This ended in Foster’s saying Jack was his brother and he would defend him. Whereupon they both got down, Foster being unarmed, and fought a short time in the dark. Foster died almost immediately, having received five wounds made by a knife, which was not found. Defendant was bruised and his ankle sprained. We do not think that in explaining the inference — not of malice aforethought — but of an intent to MU, as arising from the nature of the weapon used by one person in slaying another, the circuit judge made his charge obnoxious to the criticism of singling out a part of the facts, and thereupon giving to them too much emphasis in his instruction to the jury. What he said on that subject was only a part of his charge. He explained to them at the same time the law of manslaughter, and of killing in self-defense, or of supposed self-
The first charge asked on behalf of defendant, manifestly, was properly refused. Such an interpretation of the juror’s oath as is therein assumed, would always arm those members of a jury who might be in favor of a verdict of acquittal, or of finding the defendant guilty of an inferior grade of the offense for which he was indicted, with authority to coerce the rest into a concurrence with themselves. The oath binds each juror, severally, a true verdict to render, according to the evidence, upon his own judgment and conscience, not those of his fellows.
The fact that defendant was designated in the indictment as “ Henry Evans, alias Henry Eounsiville,” did not make it necessary to prove that he was known and called by both of these names. It was sufficient if he was identified as the person entitled to either of them and known by it.
We find no error in the record, and the judgment must be affirmed.