| Ala. | Dec 15, 1884
— The statutes prescribing qualifications of jurors, and causes of challenge, were designed to obtain a trial by an intelligent, competent and impartial jury. They were enacted, not solely to preserve the rights of the defendant, by securing to him a fair trial, but also to procure a due and proper enforcement of the law, for the protection of the rights and the safety of the community. The purpose of the statutes is, to secure to the defendant, and to the State, the right of rejecting unfit persons as jurors. To give to the State the right to an impartial jury, and to reject persons who, from conscientious scruples or otherwise, are incompetent to administer punishment for crime, as exacted by the law, section 4883 of the Code was enacted. It provides: “ Cn a trial for any offense which may be punished capitally, or by imprisonment in the penitentiary, it is a good cause of challenge by the State, that the person has a fixed opinion against capital or penitentiary punishments, or thinks that a conviction should not be had on circumstantial evidence.”
During the selection of a jury for the trial of the’defendant, who was indicted for murder, a person summoned as a juror, on being examined by the court as to his qualifications, answered, that “ he would convict on circumstantial evidence, but would not hang on such evidence.” To the offense of murder in the first degree, the law attaches the penalty of death, or imprisonment for life in the penitentiary, at the discretion of the jury. The design and policy of the law are, that persons convicted of murder in the first degree shall, in a proper case, suffer death; but the law-makers, knowing that the circumstances would vary in different cases — in some mitigating the guilt, though not sufficient to reduce the degree of the offense • — and that the death penalty may be too severe, or unnecessary, left to the jury, from a tender regard for human life, a wise and large discretion as to the punishment. The policy of the law, and the purpose of this discretion, would be defeated, if a person is permitted to serve as juror whose conscience is antagonistic to the utmost penalty prescribed by the law, where the facts demand its infliction. A juror who can not conscientiously affix the penalty of death, where a conviction is had on circumstantial evidence, is not qualified to exercise the discretion vested in him by the law, and does not possess the fitness contemplated by the statute. Under no circumstances could his sentence, in such case, be more than imprisonment for life.
It is insisted that section 4883 must be strictly construed, as
It is permissible to prove previous altercations or combats between the accused and the deceased, as tending to show malice, ill-will, or a motive for the killing. The object of such evidence is the fact of the previous difficulty, and collateral inquiries into the particulars, details or merits, are not allowable. Gray v. State, 63 Ala. 66" court="Ala." date_filed="1879-12-15" href="https://app.midpage.ai/document/gray-v-state-6510376?utm_source=webapp" opinion_id="6510376">63 Ala. 66 ; McAnally v. State, 74 Ala. 9" court="Ala." date_filed="1883-12-15" href="https://app.midpage.ai/document/mcanally-v-state-6511684?utm_source=webapp" opinion_id="6511684">74 Ala. 9. Pes gesten consists of such circumstances, or declarations, as arise from a main or principal fact, are cotemporaneous with it, so as to be regarded a part of the transaction, and serve to illustrate its character. The main fact is the homicide. Declarations of a bystander, made several hours previously, on the occasion of an altercation between the parties, are not sufficiently coincident in point of time with the main fact to form part of the res gestee: and if they served only to illustrate the nature of the previous difficulty, they would not be admissible, since its details or merits can not be made the subject-matter of investigation. . The declaration of the wife of the defendant, made at the time of the antecedent quarrel or combat, do not serve to explain the particulars or merits, but tended to prove
' It also appears that there was a conflict in the testimony, whether the defendant was the person who was on the premises of the deceased at the time of the altercation during the morning of the day of the killing, and, also, who was there at the homicide. The identity of the defendant witli the person who did the shooting was a material question. Identity of name is presumptive of identity of person, where there are not two or more persons in the same community or vicinity bearing the same name.— Gitt v. Watson, 18 Mo. 274" court="Mo." date_filed="1853-03-15" href="https://app.midpage.ai/document/gitt-v-watson-7999101?utm_source=webapp" opinion_id="7999101">18 Mo. 274; 2 Whar. on Ev. § 1273. In the absence of any showing of the nature and extent of the conflict in the testimony, we must presume that the' name of the defendant tended to identify him as the person who had the previous difficulty with the deceased, and who had a motive, or incentive to do the killing, and as the person who committed the homicide. The accused having been addressed by his wife, at the time and place of the altercation, by a particular name, and his acquiescence, is some evidence that such is his name, its sufficiency to he determined, under all the circumstances, by the jury. Whenever, on the trial of a cause, it becomes material to prove the identity of the accused with the person who committed the offense, it is competent to show any declaration addressed to the defendant, tending to prove such identity, which, by his conduct, he admitted to be true.
Affirmed.