42 So. 70 | Ala. | 1906
The motion for a change of venue was subject to the demurrer interposed. — Thompson v. State, 122 Ala. 12, 26 South. 141. The motion avers facts to show only a state of feeling against him in Talladega, and while it avers that the feeling is such, that he cannot get a fair trial in the county, this averment is a mere conclusion, so far as it. relates to all parts, of the county other than Talladega, beat. All things may have occurred as averred in Talladega, yet there are no facts set up to show that the public mind was inflamed against the defendant in other parts of the county. The record also shows that only five out of the 26 petit jurors were from Talladega beat No. 5.
Section 1 of the act of 1898, page 737, provides for the organization of the grand juries on the first. Monday in March and September. § 5 of the act of 1895 (Acts 1894-95, p. 1220), provides that, the city court of Talladega shall have one term commencing the first Monday in September and ending the last day of the succeeding June. The law puts no. restriction as to the time for the deliberation of the grand jury, except that it could not extend beyond the term for which it is organized. It will therefore be observed that the grand jury in session had the right to sit and deliberate until the last day of the succeeding June, unless discharged sooner by the court. The court also had the right to recess the grand jury and reconvene it at any time so long as it had not been discharged by an order of the court, or under the operation of law.
The court complied with § 5023 in completing the organization of the grand jury as originally organized. The record shows that J. A. Thornton for a sufficient reason was excused. This reduced the number of jurors to 14, and the court ordered two- qualified persons summoned, and the record, shows that § 5023 was complied with. — Peters v. State, 98 Ala. 38, 13 South. 334.
It was sufficient if the organization of the grand jury was incorporated in the minutes any time before the adjournment of the term. — Carwile v. State, (Ala.) 39 South. 220. § 22 of the act of 1895 does not relate to general orders but applies to judgments and decrees in cases.
The petit jury was summoned and organized under § 4998 of the code of 1896, and the motion to quash the venire was properly overruled.
The fact that Hubbard stopped just before going to the house, whether legal or not, was certainly innocuous and could not amount to reversible error. — § 4333 of the code, of 1896; Morris v. State (Ala.) 39 South. 608.
There was no error in permitting the state to show the condition in which Hubbard was found shortly after the assault, nor was it necessary for the witness to be an expert in order to so testify.
The confession made by defendant to witness Hood, was clearly material.
There was no error in sustaining objection to the question to Hattie Breedlove: “State what you went to the door for.” It clearly called for the purpose or uncommunicated motive of the witness.
There was no reversible error committed in the cross-examination of Hattie Breedlove. If the question laid a predicate for immaterial matter, they were all answered in the negative and no effort was made to contradict her in that respect.
There was no error in permitting the state upon cross-examination to ask the witness what he told Dickinson and Hood.
The first part of the oral charge excepted to was free from error, as it stated the law of self-defense. 1 f the defendant AA'as the agressor, this eliminates the question of self-defense, unlests he had withdrawn in good faith, which.Avas given the jury, in the same sentence, and Ave cannot reverse a trial judge upon an excerpt from a sentence when the sentence as a whole is correct.
The court erred in the oral charge in saying: “No man had a right to assault HoAvard Hubbard under the facts developed in this case.” This Avas clearly a charge upon the effect of the evidence, and violative of § 3326 of the code of 1896. — Gulf City Co. v. Boyles, 129 Ala. 192, 29 South. 800; Gafford v. State, 125 Ala. 1, 28 South. 406.
We have carefully gone over and considered each of the written charges, refused to the defendant, and the action of the court below in this respect was free from error.
For the error pointed out, the judgment of the city court is reversed and the cause is remanded.
Reversed and remanded.
