64 So. 200 | Ala. Ct. App. | 1913
The judgment entry shows that the jury was drawn in open court, and that the order setting the case, fixing and drawing the venire, and arraigning the defendant is in strict compliance with the law. The fact-that it was made to appear, on a motion to quash the venire, that on the list served on the defendant one of the jurors drawn to serve on the special
Whether or not the deceased was drinking or drunk at the time he fell out of the wagon at a time several months after he was shot by the defendant, and three or four weeks before his death, was no part of the res gestae and could have no possible tendency to prove or disprove any issue before the court, and there was no error in refusing to alloAV the defendant to make proof of such fact, if it Avas a fact.
The three- charges given at the instance of the state, state correct propositions of laAv, as applied to the evidence in the case, and no error resulted from the court’s having given them in charge to the jury. It needs no discussion to sIioav that the first charge, stating the familiar proposition that there must be a unanimity as the basis for the rendition of a verdict, is correct. He
Charge No. 2, refused to the defendant, is faulty in failing to predicate that the killing was in a sudden rencounter or affray (Code, § 7086), and is misleading in that the defendant must not only not have been the assailant (the aggressor) and provoked the difficulty, but must have been entirely free from fault in having brought it oh (Smith v. State, 142 Ala. 14, 39 South. 329) notwithstanding the use of the word “assailant” in the statute. The charge as part of its predicate improperly requires the state to prove that the deceased did not know that the defendant had the pistol when the fight commenced, hypothesizing a fact, too, of which there was no evidence (Lewis v. State, 178 Ala. 10, 59 South. 577) and raising a question which was not an issue .on the trial (Washington v. State, 155 Ala. 2, 46 South. 778). The. charge is also misleading in not stating the conditions under which the state is required to prove freedom from fault. — Crumpton v. State, 167 Ala. 4, 52 South. 605.
Refused charge No. 3 directed the attention of the jury to a particular phase of the testimony of the witness and instructed them to weigh the evidence on that subject (Coates v. State, 1 Ala. App. 35, 56 South. 6) and a charge which singles out a particular feature of the evidence is properly refused. — Savage v. State, 174 Ala. 94, 57 South. 469; Parris v. State, 175 Ala. 1, 57 South. 857.
We have examined the rather voluminous, but well prepared, record and find no reversible error or other question presented that we deem of sufficient merit to necessitate discussion.
Affirmed.