130 Ala. 40 | Ala. | 1900
There was no error in the action of the court in overruling the defendant’s motion to quash the venire because of an alleged mistake in the names of jurors, either in the venire, or the list delivered to the defendant. The statute expressly provides that this “is not sufficient -cause to quash the venire, or to delay or continue the trial, unless the court, 'in its discretion, is of opinion that the ends of justice so require.” — Code of 1896, § 5007.
Nor was there -any error in refusing to discard on defendant’s motion the names of the jurors Smith, Sanford, Watson, Tappison and Deavors. As to the first three mentioned, the alleged mistake in the names, was that in the list delivered to the defendant the second initial was different from that in the venire, the first initial in both the venire and the list served on defendant 'being the same. As the law recognizes but one given or Christian name, that there ivas a variance in the middle name or initial did not constitute a mistake in names within the meaning of the statute.—Pace v. State, 69 Ala. 231. As to the last two names above mentioned, the alleged mistake consisted in the spelling, — the names being written Tappason and Davors, when the correct spelling of the names was Tappison and Deavors. This constituted no mistake within the meaning of the statute. The application of the rule of idem sonans removes any objection as to the mistake in these names resulting from incorrect spelling.—Underwood v. State. 72 Ala. 220.
In selecting the jury from the special venire, which is to try the defendant, only the names of the jurors summoned for the trial and the names of the regular jurors in attendance, should be written on slips and placed in the box or substitute therefor, from which the drawing is to he had. — Code of 1896, § 5009. The names of several of the special jurors ordered summoned for the day set for the trial were returned by the sheriff in the execution of the writ of venire, not found. These names should not have been written on
The testimony of the defendant’s witness, G-. W. Kim-brell, who was his brother, as to what he had heard about letters having been received by his mother’s family from members of his uncle’s family in Texas, telling about his uncle’s losing his mind, was properly excluded, being purely hearsay. 'The same principle applies to the testimony of said witness about an uncle in Georgia, which was properly excluded.
Nor was there any error in the refusal of the court to allow .the witness G. C. Ray to testify to a declaration of the deceased, Cicero Wheeler, made a few months before the shooting took place, as to the defendant’s being crazy, which was clearly inadmissible.
Riley Kimbrell, a son of the defendant, and a witness for him, was cross-examined by the State’s counsel as to whether or not the defendant had talked sensibly and rationally about his case a few days after he was arrested, and had advised the employment of certain counsel, amount of fees-, etc., the said witness having testified on 'direct examination about the demeanor of his father a few days before and a few days after the killing. The court allowed cross-examination upon the facts over the objection of the defendant, one of the grounds of said objection being that this matter constituted a privileged communication. This position was untenable, and the testimony was clearly in rebuttal of what the witness had sworn on his direct examination by defendant’s counsel, and there was no error in its admission.
There were other exceptions to rulings on the admission of evidence, but counsel in argument have passed them unnoticed, and upon examination and consideration we think these exceptions without merit, and so
We find no reversible error in the record, and the judgment is affirmed.
