102 Ala. 87 | Ala. | 1893
The defendant excepted to the refusal <‘*f the court to quash the venire, and also excepted to ■ ■ «■ court ordering the sheriff to go out and summons .'d Francisco Gomez, Jr. It seemed to be difficult to satisfy the defendant. He moved to quash the venire, because Gomez, Jr., was not present, and had not been served, and when the court took the time and trouble and had him brought in, he objected to this procedure. The court, -by its action, put defendant in the same position exactly, as to this juror, that he would have occupied, if he had been served in the first instance, and had been present in court. It was not shown that there was any other Francisco Gomez, Jr., in the county, and the presumption is, that this was the man whose name was drawn from the jury box by the court, and served on defendant, as one of the special venire for his trial. There was no error ' in the rulings as to this matter. — Code, § 4322.
The special jury law of Mobile county provides, that the jury commissioners shall draw thirty-six names from the “city court jury box,” and these shall be recorded as the petit jurors for the first jury week of the next term of the city court, and that the slips which havq
The bill of exceptions in addition to the statements above recited, taken from it, contains this further statement as to the drawing of the jury in this case, viz. : ‘ ‘The court ordered the sheriff to proceed with the call of the venire drawn for the trial of this cause, and thereupon the sheriff put into a hat, the small slips of paper which had been drawn by the jury commissioners for Mobile county, and each of which slips of paper contained the name of a juror written thereon, and proceeded with the call of said venire by drawing from said hat one of said slips of paper at a time with the name of a juror thereon,” until the names of Gomez, Jr., and Thomas McDonald, Jr., were called.
The word “Junior,” or “Jr.”, it has been held, is 40 part of the name of a person who uses it as an affix to his name, but is ordinarily a mere description of the person. The word means, younger, later born, later in office
The statute under construction seems to require that the persons whose names are drawn from the jury box, whether by the commissioners, or under the direction of the court, shall be the very persons to whom the defendant in a capital case is entitled, from whom to select a jury. The particularity with which the identical slips drawn from the jury box are to be preserved by the clerk, to be used in the drawing of the jury, in addition to the terms of the statute itself, leaves us no room to doubt on this point. It was not intended that the prisoner should be subject, as to this matter, to the discretion or the mistakes of the officers entrusted with the execution of the law. As we have seen, the bill of exceptions states positively, “that the sheriff put into a hat the small slips .of paper which had been drawn by the jury commissioners,” from the jury box. It is certain, therefore, that a man by the name of Thomas McDonald, with the affix of Jr., was drawn by the commissioners from said box, was returned by them to the clerk, and was placed by the sheriff in the hat and was drawn out by him ; and that a mistake was made by the commissioners in copying their list from the slips to be returned to the court, or else, the clerk made the mistake in copying the writ for the sheriff; but, however it may have occurred, it is equally certain, that the Thomas McDonald, to whom the defendant was entitled, was not the one on the venire and who responded to the call of Thomas McDonald, Jr. The defendant objected to having said juror put upon him, but his objection was overruled and he excepted. The ruling of the court was erroneous.
Reversed and remanded.
—It might be inferred from the opinion in this case, that the charge requested, and which apparently was copied from the Keith Case was inherently vicious. The case of Jones v. The State, 76 Ala. 8, was reversed because of error in refusing a charge, in which the question of retreat was ignored, and the case of Christian v. The State, 96 Ala. 89, was reversed for refusing to give a‘ similar charge. The principle of law involved and upon which the court proceeded in reversing these cases was fully recognized in the cases of Lee v. The State, 92 Ala. 15; Harris v. The State, 96 Ala. 24. It would be error to refuse such a charge when the facts and circumstances affimatively showed that no duty to rotreat devolved upon the slayer, as where the party assaulted ‘ 'was in his own house, or within the curtilage or space usually occupied and used for the purpose of the house,” or in some cases of felonious assault. Where these conditions do not exist, and the defendant relies upon the lavy of self-defense a charge which ignores the doctrine of retreat should be refused. As was said in the case of Holmes v. The State, 100 Ala. 80, “there can not be a necessity to kill, where there is a safe way to retreat open to the slayer, available by the exercise of reasonable prudence. ’ ’ The statement of the facts in the Keith Case, reported in 97 Ala. 32, do not show that the assailant was excused from the duty to retreat; and under the facts, and the foregoing principles, the court did not err in refusing charge No. 2. The case of Keith was properly reversed for refusing to give charge number one, which charge contained every element of the doctrine of self-defense. From the brief consideration given to charge No. 2,.in the opinion, and the authorities cited, it.would seem that the only question raised by this charge, considered by the court, was whether the danger inust-be real, or whether “it is sufficient if the apparent danger is such as to create in the mind of a reasonable man a’ just apprehension of imminent danger to , life or limb.’ ’ I have felt justified in saying this much,