62 Ala. 233 | Ala. | 1878
The indictment in the present case was found at a special term of the Circuit Court, and the objection is. urged that the record does not sufficiently show such special term was called according to law. The transcript from the records of the Circuit Court recites the time and place of holding the special term, and that it was held “ in pursuance of an order of the Hon. L. B. Smith, judge of the 7th judicial circuit of said State — notice given as required by law by advertisement in the Livingston Journal, a newspaper published in said county, for more than thirty days.” Hon. L. B. Smith is, and was at the time this special term was called,, the presiding judge of the seventh judicial circuit, and that circuit embraced Sumter county. The statute does not require, or contemplate that the order for holding a special term of the Circuit Court shall be spread on the minutes contemporaneously with making of the order. The order is
It is not necessary that the record shall recite or affirm that in the opinion of the judge, a special term was necessary. Whether or not it was necessary, is not an assailable or contestible fact. The intention of the legislature was to clothe the circuit judge with large power and discretion, and to constitute him sole judge of the necessity for holding such special term. The order for the special term, is itself an affirmation that in the opinion of the judge it is necessary. Martin v. Mott, 12 Wheat. 19; Vanderhayden v. Young, 11 Johns. 150; Stuyvesant v. Mayor, &c., 7 Cow. 588.
There is nothing in the objection that the special term was held by Judge Craig instead of Judge Smith, who was judge of the circuit, and as such had called, the special term. The jurisdiction of each of said judges was precisely the same, and any circuit judge of the State could lawfully hold the court.. — Constitution, Art. 6, Sec. 6.
The exception taken in this case is general to the two charges given at the request of the solicitor. It follows that if either charge is correct, the exception is not well taken. The record informs us it contains all the evidence. It not only fails to show a provocation for the homicide, but shows the defendant was the aggressor throughout. If the deceased had even given the slayer a verbal insult, and the defendant thereupon gave him a blow with an instrument calculated to produce death, and in that way caused his death, this would be murder. Words never reduce a homicide to manslaughter. And the law, from the intentional, unauthorized use of a deadly weapon, if there be nothing else in the transaction, implies malice. — Hadley v. The State, 55 Ala. 31; Judge v. The State, 58 Ala. 406.
There is no error in the record. Judgment affirmed.
