Logan v. State
149 Ala. 11
Ala.
1907
Check Treatment
DOWDELL, J. —

The commissioners II. Brown and W. M. Wright, who acted with the jury commissioners that drew the grand jury which found and returned the indictment against the defendant, were commissioners de facto, if not commissioners de jure. They each at the time held a commission of office regularly issued to each of them as such commissioners, and the fact that they were, subsequent to the time of the drawing of the jury in question, ousted of the office of commissioner on quo warranto proceedings against them, is of no importance. They each, while acting as commissioners in the drawing of the jury, acted under color of office, and were therefore de facto commissioners.' — Cary v. State, 76 Ala. 78;. Spraggins v. State, 139 Ala. 93, 35 South. 1000. The rule is well settled that the official acts of an officer de facto'are just as. valid for all purposes as those of an officer de jure, so far as the public and third persons are concerned. — Cary v. State, supra; Joseph v. Cawthorn, 74 Ala. 411, and cases there cited.

The predicate for the admission of evidence of dying declarations was sufficient, and no error ivas committed ifi overruling the defendant’s objections to this evidence.

' There was no error in sustaining the objection of the state to evidence by the defendant, when testifying as a witness in his own behalf, as to the particulars of a previous difficulty between the defendant and the deceased.

It is urged here that the grand jury which returned the indictment was an illegal grand jury, in that the *15record shows that, as organized, it was composed of only 14 persons. No such objection was made to the indictment in the court below. There is a conflict in statement in the minute entry relating to the Organization of the grand jury, as appears from the transcript here. The minute entry affirmatively states that the grand jury, as organized by the court, consisted of 15 persons, but' sets out the names of only 14. Motion was made in the court below to quash the indictment on other grounds, and it is reasonable to presume, if the fact had existed that the grand jury was composed of only 14, motion would have been made to quash on that ground. In such a case we will presume, in favor of the affirmative statement in the judgment, that th"e grand jury as organized was composed of 15, and that the failure to state the name of the fifteenth person was a clerical omission in making up the transcript for this court.

Charge 2, given at the request of the solicitor, Avas invasive of the province of the jury, and therefore erroneous. EArery fact hypothesized in the charge might have been believed by the jury, and yet, under the evidence set out in the record, it Avas open for the jury to find that the defendant acted in self-defense. ■ If, Avhen the defendant first came in sight of the deceased, the latter made such demonstration as Avould reasonably impress the defendant, and did so reasonably impress him, with the honest belief that he Avas in peril of his life or great bodily harm, and there Avas no reasonable mode of retreat or escape, and if the defendant Avas free from fault in bringing on the difficulty, and did not encourage or willingly enter into it, then he Avould not be deprived of his plea of self-defense, although he might haAre cursed the deceased and said he would kill liini. The facts hypothesized in the charge may haAre been sufficient to convince the jury that the defendant Avas not free from fault, and, therefore, could claim nothing under the plea of self-defense ;• but it Avas for the jury’s consideration, and for them to say, and not for the court to say as a matter of laAV. Under the' evidence the jury might have found that th^rfacts hypothesized in the charge were subsequent in point of time to the threatening demonstrations of the deceased. The charge, Avhen analyzed, *16asserts in effect as matter of law that, notwithstanding all of the constituent elements of self-defense may have existed, yet if the defendant cursed his adversary and declared he would kill him, and immediately shot him, he would thereby be deprived of his plea of self-defense.

Justices Anderson and Denson concur with the writer in the foregoing views. Chief Justice Tyson and Justices Haralson, Simpson, and McClellan, constituting a majority of the court, hold that charge 2 correctly stated the law and that no error was committed in giving it. The judgment appealed from must therefore be affirmed.

Affirmed.

Tyson, C. J., and Haralson, Simpson, and McClellan, JJ., concur. Dowdell, Anderson, and Denson, JJ., .dissent.