Knight v. State
160 Ala. 58
Ala.
1909
Check Treatment
DENSON, J.

A mistake occurred in the names of two of the veniremen, and on motion of the defendant they were discarded, and two jurors were summoned, in accordance with section 7267 of the Code of 1907, and their names placed in the hat, with the names of the other jurors, in substitution for the two discarded. Section 7268 of the Code provides that a defendant may peremptorily challenge such substituted jurors, “in addition to the other peremptory challenges allowed him by law.” After the defendant had peremptorily' challenged 21 jurors, including one of the two (Mr. Robertson) who were substituted for those discarded, W. P. Hanson qualified, and was put upon the defendant. In this connection, the bill of exceptions contains the following recitals: “Counsel for defendant stated to the court that he thought defendant was entitled to another challenge. The court asked counsel on what ground he thought defendant was entitled to one more challenge, and said counsel failed or refused to state any ground, and the court stated: ‘If you refuse to state the ground, the court can’t allow an*63other challenge.’ Hanson was then challenged by the defendant, telling the court at the judge’s desk, in a low tone, that he challenged said juror; but the court refused said peremptory challenge and directed the juror to take a seat as a juror, and to this action of the court defendant then and there reserved an exception. Counsel for defendant did not call the court’s attention to section 7268 of the Code of 1907, or in any way give any reason why defendant was entitled to another challenge.” While it was the statutory right of the defendant to challenge the juror (Smith’s Case, 155 Ala, 77, 46 South. 236), yet this court is of the opinion that, under the facts disclosed by thé bill of exceptions, the conduct of defendant’s counsel towards the court, in respect to the matter at issue, estops the defendant from insisting that the ruling of the court was reversible error. It is the duty of an attorney, in the trial of causes, to aid the court, to the end that error in the course of the trial may he avoided, and, when called upon by the court, to state the ground upon which a contention is rested or a ruling is invoked. The duty rests upon the attorney to comply with the request, and to give the court the benefit of the information he posesses; and failing, or “refusing,” so to do, no duty rests upon the court to cast about to ascertain the grounds upon which the ruling is invoked, and it may overrule the objection or motion without committing reversible error. — Wallis v. Rhea & Ross, 10 Ala. 453; Sanders v. Knox, 57 Ala. 80. It is true that, in the cases cited, the question arose on the admissibility of testimony; hut the principle upon which the rulings were made in those cases is applicable here. It is no answer to this proposition to say that the court was familiar with the statute giving the right of challenge. This may be true, hut can it be presumed that the court knew or *64remembered that Robinson, who had been peremporily challenged, was one of the jurors in substitution of another whose name had been discarded, and was mindful of the fact at the time? How easy it would have been for the attorney to remind the court of the fact that Robertson was a substituted juror, and that, under the statute, defendant’s challenge of that juror could not he charged against him, in estimating his quota of 21 peremptory challenges. Upon the suggestion of such fact, it cannot be doubted the trial court would have readily accorded the right of challenge which counsel said he “thought defendant was entitled to.” — L. & N. R. R. Co. n. Thornton, 117 Ala. 274, 284, 23 South. 778; Thomas’ Case, 150 Ala. 31, 47, 43 South. 371.

The court committed no error in sustaining the objection to- the question propounded to the witness Tom Green, namely, ’’Was that said through a spirit of friendliness?” Manifestly the question called for an opinion or conclusion of the witness. — Hill’s Case, 137 Ala. 66, 34 South. 406, and cases cited in the opinion in that case. S’ee, also, Harrison’s Case, 78 Ala. 5. Threats made by the defendant are generally admissible, as tending to show malice on his part towards the deceased person, with the killing of whom he is charged; but, to he admissible, they must either have direct reference to the deceased, or must be capable of such construction. In view of the principle last above stated, we are of the opinion that the trial court committed reversible error in admitting the testimony of witness H. L. Adair (R., p. 60). The cases cited by the Attorney General Ford’s Case, 71 Ala. 385, and Jordan’s Case 79 Ala. 9), to support the ruling of the court below, are not in point, as in each of these circumstances were shown from which the jury might infer that the deceased person came within the scope of the threat made. Here the witness testified *65that he thought that defendant, a few days prior to the difficulty “made the remark that he would get him a damn man before he was 21. years old.” The testimony shows that deceased and defendant were on friendly terms to even within .a few. minutes before the fatal .encounter, and there is not a circumstance in the testimony which can be construed as bringing the deceased within the very general statement attributed to the defendant, unless it be-the fact that the deceased was one of the human race at th,e time — which alone, in our opinion, could not serve the purpose of pointing the threat towards the deceased. — Redd’s Case, 68 Ala. 492; King’s Case, 89 Ala. 146, 7 South. 750; Henson’s Case, 120 Ala. 316, 25 South. 23.

It is next insisted by counsel for the appellant that the trial court erred in refusing charges H, J, and G. In Hall’s Case, 130 Ala. 45, 55, 30 South. 422, this court, through McClellan, C. J., said, of a requested charge (4), couched in almost the same, if not the identical, language of charge H in the case at bar (names of parties aside), that it had a tendency to mislead the jury to discard the witness’ testimony upon the mere consideration that it had been successfully contradicted as to a material fact, when they might have concluded that he had testified conscientiously touching that fact and was honestly mistaken in regard to it. Again, in Brown v. State, 142 Ala. 287, 38 South. 268, it was said, concerning a charge similar to charge H, here, that it asserted an incorrect proposition of law; and the cases of Gregg v. State, 106 Ala. 44, 17 South. 321, and Williams v. State, 114 Ala. 19, 21 South. 993, were expressly overruled on the point. It follows that charge H was properly refused. Charges J and G do not materially differ from charge H, and they also were properly refused.

*66Charge 18. asserts no proposition of law, nor does the record disclose that there was even any insistence that the defendant was on trial for carrying a concealed pistol. The charge was properly refused.

Charge 14, if not had in other respects, possesses the vice of failure to hypothesize the employment, by the defendant, of no more force than was necessary. The charge was properly refused. — Myer’s Case, 62 Ala. 599.

While charge J, requested by the state, is argumentative, yet the court committed no error in giving it.— Pitt’s Case, 140 Ala. 70, 37 South. 101.

In this opinion we have discussed and disposed of all the questions presented by the record and argued and insisted upon in the appellant’s brief.

For the error pointed out, the judgment of the lower court must be reversed, and the cause will be remanded.

Reversed and remanded.

Dowdell, C. J., and Simpson, and Mayfield, JJ., concur.