McQueen v. State

Nov 15, 1891
Versions:94 Ala. 50
CLOPTON, J.

— In Darby v. State, 92 Ala. 9; 9 So. Rep. 429, it was decided, that when the presiding judge draws from the jury-box the name of fifty persons, and orders them to be summoned to appear on the day set for the trial of a capital case, and a copy of the list of the names so drawn, with the list of the regular jurors drawn and summoned for the week, to be served on the defendant, he is entitled to the full number; and if one whose name is drawn and put on the special venire, is also on the regular panel for the week, the defendant is deprived of his right to the full number ordered, and it is good ground for quashing the venire. The motion to quash the. venire in the, present case is made on the same ground as in Darby's ease, and the faets in the two cases, the name of the juror being changed! are identical. On the authority of that case, the motion to quash the venire, which was made in due time, should have been granted.

It is unnecessary to consider the exceptions to the refusals of the court to send, while the jury was being impannelled, for the special jurors who were serving on the grand jury. A like proceeding will not probably óccur on another trial.

The deceased was wounded in the back, a little to the left of the spinal column, and near the lower end of the spine; it was a gun-shot wound, the deceased dying next day. The evidence shows, that he said to the witness, “I want you to do all you can for me; I believe, I don’t think I will live.” The circumstances, and the statement of the deceased to the witness, prima facie-show that he was under a conviction of approaching death, and had lost hope of recovery. A sufficient predicate was laid to admit the dying-declarations, leaving to the juiy to consider the circumstances under which they were made in determining the weight which should be given to them. — Jordan v. The State, 82 Ala. 1; Ward v. State, 78 Ala. 441.

*53The ruling as to the admissibility of the confessions of defendant in evidence, is in accord with the decisions of this court. It is affirmatively shown that the confessions were not made under the influence of threats, promises, or other improper inducements, but were voluntary. The mere fact that the defendant was under arrest, and made the confessions in answer to questions propounded to him by the officer having him in custody, does not render them inadmissible. Spicer v. State, 69 Ala. 159.

The charge requested by defendant is argumentative, and for this reason, if no other, was properly refused. The same observation is applicable to the first two charges requested by the State; but the giving of an argumentative charge will not operate to reverse the judgment, unless it appears to have misled the jury.

For the error in refusing to quash the venire, the judgment is reversed.

[Reversed and remanded.