— Coiistruiug tbe first plea of 'former jeopardy ‘ihbst strongly against tbe dеfendant, it shows only thatjlie juryman,' Oliambless, was directed d>y. tbe court. to, leave tbe jury box, that he thereupon Stood aside, in the court room under tbe eye and in tbe '^presencе'of the court, that immediately thereupon tbe ■defendant objected to bis'being taken off the jury and jtiie congt thereupon immediately directed and caused liim .tig resume bis place among tbe jurors and as a member .of tile 'jury.' Clearly upon this state of facts this 'juror ivas never discharged from tbe jury аnd tbe jury as a body was not discharged, or its organized identity 'jínpéatíb'ed: And''when, upon another juror making known .to' the court that hе,' .too, as well as Chambless, 'bad'been a juror on a formеr trial of’ this case, tbe jury Hvas discharged and 'a venire de novo' ordеred, tbe action was taken at'the instance of the defendant, and it will not avail him now. Kendall v. State,
A tendency of tbe evidence went strongly tо prove tbe ‘averments of thé indictment, at least to tbe еxtent o'f ''showing an assault and battery. ' The time and venue '■'werе proved. Of course, therefore, defendant was not ' еntitled to tbe affirmative charge.
t . The defendant, requestеd tbe court to give the following charge: “The defendants сharged with tbe offense . of an assault with .intent to murder, and unless еach .’ and.every one of the jury .is satisfied of his guilt to a moral certainty and beyond- all reasonable doubt, then <.you сannot convict this defendant, and if you do convict ■ this defendant without each' and every one of you being ; so satisfied then -you violate' your oaths and diregard tbe ■'instructions of thе court.” This charge was properly refused. One vice infеcting it is pointed out in the case of Cunningham v. State, 117. Ala. 59, 66-7: “It is calculated to impress tbe mind Of a juror with the idea that
Defendant was palpably not prejudiced by the question to the person allegеd to have been assaulted: “Did the defendant ever assault you?” Moreover, his objection to the question was not seasonable; it should have been made before the question was answered.
Affirmed.