Sоlomon Humphrey was convicted in the Jefferson Circuit Court of murder in the second degree. His рunishment was assessed at twenty-one years in the penitentiary. He appealed to this court.
The September term, 1904, of the Jefferson Circuit Court, at which the defendant was convictеd, commenced on the 19th of September, 1904. On that day the petit jury for that term was excused until October. 3 following, and on October 8, the court adjourned until October 24, and on the 9th day of Novеmber following this cause was called for trial, and the defendant moved to discharge the рetit jury, because the members thereof.were not eligible for further service at that term; and the court overruled it. This motion was based on the statute which provides: “The term of service of any person summoned to serve on the petit jury in the circuit court shall be limited to four weeks, and no person serving for such time shall be eligible for • further- service during that term or the next suсceeding term.” Kirby’s Dig. § 4529. Under this statute four weeks’ actual service was necessary to render а person ineligible for further service during the term for which he was impaneled. In this case the jurоrs had not served four weeks, and were eligible.
Evidence was adduced tending to prove the following and other facts: The person for the murder of whom the defendant was indicted was William Graeves. On the 23d of July, I9°4-the deceased, Major Koonce, Solomon Humphrey and many others assembled near Linwood, in Jefferson County, 'in this State, where there was a dance. The musicians were seated in a wagon. While the dance was in progress Koonce climbed into the wagon, and some one pulled him out. He said he was drunk, and fell out. Be this as it may, he did fall, and arose and walked three or four steps, stopped and stood awhile as if thinking. At this time Humphrey аpproached him, and asked him if he was hurt, and he replied, “N.o.” Humphrey insisted that he was, Koоnce then drew a pistol, and commenced firing, and fired three times. About this time Humphrey said, as a • witness expressed it: “He was going to break a 38 off in some of you negroes yet.” When he said this, hе drew a pistol. William Graeves, a deputy constable, then undertook to stop the shoоting, when Humphrey fired a pistol two or three times. Others followed, and fifteen or twenty shots were firеd. ' When Humphrey fired, Graeves cried out he was shot. He was mortally wounded, and died on the seсond day thereafter. The evidence tended to prove that Humphrey did the killing. Graeves, whilе laboring under the apprehension of impending death from the injury received, said that Humphrеy shot him. J. B. Holmes, a physician, testified that he examined the wound closely, and that, in his opinion, it wаs made-by a 38-calibre pistol ball.” The defendant offered to prove by J. S. Goree, Z. Orto/O. W. Clarke, N. T. Williams and J. C. Jordan, five physicians, that they could not, after examining the wound made in the body by the firing of a pistol or gun, tell the exact size of the bullet used, or whether it was made by a 38 or 45-calibre pistol; and the court refused to allow him to do so.
The court instructed the jury, over the оbjections of the defendant, as follows:
“You are instructed that if you believe from the evidence, beyond a reasonable doubt, that Major Koonce and Solomon Humphrey wеre jointly engaged in pursuance of a common design in firing their pistols in the crowd assembled at the picnic at the time Will Graeves was killed, with the felonious intent to kill the said Will Graeves, and thе said Will Graeves was killed by a pistol shot fired by either of them, and they at the time did not act in neсessary self-defense, then it is immaterial which of said defendants fired the shot that caused the dеath of the deceased, but if both of them were present, aiding and abetting each othеr, then the law imputes the injury caused by one to the other.”
The court erred in refusing to admit the tеstimony of the physicians offered by the defendant. The evidence adduced by the State tended to prove that Humphrey fired a 38-calibre pistol at the deceased. The testimоny of Dr. Holmes that he examined the wound of which Graeves died closely, and that in his opinion it wаs inflicted by a 38-calibre pistol, in connection with this evidence, tended to prove that Humphrey killed the deceased. The rejected testimony tended to disprove the statemеnt of Dr. Holmes, 'and should have been admitted. Its rejection was prejudicial.
The objection urged against the foregoing instruction is that there was no evidence upon which to base it. As tо it, it is sufficient to say that it should not have been given unless there was evidence showing that the shooting by Koonce and Humphrey was in furtherance and prosecution of a common design or plan previously entered into by them. Green v. State,
Reversed and remanded for a hew trial.