40 So. 568 | Ala. | 1906
Upon an examination of the record we find that the name of the deceased seems identical in both counts, except that a dot does not appear over the
We do not think there is any merit in the ground of demurrer proceeding upon the idea that the indictment is repugnant and inconsistent, because it sets out the name of the defendant in one count and gives the initials in the other, with an averment that the Christian name was otherwise unknown. If the proof disclosed that his name was Thos. J. Harrison, the other count could -be charged out; and if the proof showed that his name was not Thos. J. Harrison, then the grand jury was mistaken as to his Christian name, and this count would be good, and the one that set out his name could be charged out. These averments in separate and distinct counts did not render the indictment demurrable, but the defendant could have protected himself by appropriate instructions after the proof was had. The pleader should be given some latitude as to matters merely descriptive, and be permitted to frame counts to meet every emergency about which there may be doubt or uncertainty; otherwise, the very spirit of the law in permitting more than (me count- in an indictment would be thwarted. — Smith v. State (Ala.) 39 South. 329; Duvall v. State, 63 Ala. 12. Furthermore, the demurrer was bad, because each count stands alone and each is considered alone'.
The fifth ground of demurrer relates to the first count, and, we suppose, proceeds upon the idea that said count does not conclude, “against the peace and dignity of the State of Alabama.” It is not necessary that each count should so conclude, if the indictment so concluded; and the indictment here does so conclude. — McGuire v. State, 37 Ala. 161.
There was no error on the part of the trial court in refusing to' quash the indictment on account of the middle initial in the names of grand jurors Hunt and Lyda, or in permitting proof that they were the only persons residing in the precinct with such names. — Rampey v. State, 83 Ala. 31, 3 South. 573; Kimbrell v. State, 130 Ala. 40, 30 South. 454; Sewell v. State, 82 Ala. 57, 2 South 622; Pace v. State, 69 Ala. 231, 44 Am. Rep. 513. And this doctrine applies to the objection of defendant
The defendant objected to- J. A. Rorex being put upon him, because he served, on the regular jury the preceding week, and to- P. M. Ray, because he had served on a grand jury within 12 months. Section 4988 of the Code of 1896 expressly excepts persons specially summoned as jurors in capital cases from any disqualification by virtue of having rendered other jury service.
There was no error in giving charge 1 requested by .the state.
Charges 2 and 6, requested by the state, correctly assert the law. — Rhea v. State, 100 Ala. 119, 14 South. 853.
Charge 3, requested by the state, correctly asserts the law. — Jackson v. State, 136 Ala. 22, 34 South. 188.
Charge 4, given for the state, is law. — Waters v. State, 117 Ala. 108, 22 South. 490.
There was no error in giving charge 5, requested by the state. — Pitts v. State, 140 Ala. 70, 37 South. 101.
Charge A., requested by the defendant, was properly refused. The defendant may have believed he was in danger of his life at the time of the killing, yet may have provoked the difficulty with a murderous design, and the charge ignores freedom from' fault on the part of the defendant.
Charges B. and C., requested by defendant, were properly refused. If not otherwise bad, they pretermit the belief of the defendant as to his danger at the time he fired the shot. The circumstances may have been such as to have impressed the accused that he was -in danger, yet he may not have been so impressed when he fired the shot, and, if he did not do so under the belief that he was in danger, then his act would not be excusable, and was not for the purpose of self-protection.
Charge D. was properly refused. It pretermits the defendant’s belief or intent at the time he fired the shot. The surroundings may have been apparently dangerous, yet, if he did not honestly believe he was in danger, his act was not one of self-protection.
Charge F, requested by defendant, was properly refused. The defendant had no right to fire unless the deceased was the aggressor, nor even then if he could retreat with safety, and both of these propositions are ignored by the charge.
Charge H was properly refused. The defendant may have, brought on the difficulty by some act or deed, whether he used the first insulting word or not.
Charge I need not be considered, as the defendant was acquitted of murder in the first degree.
The judgment of the circuit court is affirmed.
