Murphy v. State, 37 Ala. 142

Murphy v. State

37 Ala. 142 | Ala. | 1861

A. J. WALKER, C. J.

By section 3585 of the Code it is provided; that, in' all trials for a capital or penitentiary offense, it is a good challenge for cause by the State, that-'the juror has a fixed opinion against cap-ital or penitentiary punishments. The statute makes the - specified cause a ground of- challenge by the State, but it cannot, without the most glaring perversion of its meaning,-, be understood as making it a ground of challenge by the Prisoner, or as.imposing upon the court the duty, ex mero moiu, of setting- aside a juror for the cause mentioned.The State mayt or-may. not; at its election, challenge a juror for the cause mentioned and the prisoner has no-right to complain-that the State forbears to "exercise the' right of challenge.

[2.] It is possible that some portion 'of the evidence of” Mrs. Keys, which the court admitted against the prisoner’s ■ objection,- did-not servé te explain-either the expression as ■ to which she was contradicted, or her motivesy'but it is • certain that much of -it Was so-connected with the pb-rticu-lar-'expression, as to render the part so connected competent evidence. This being the case, the court,- as w-e have often decided, committed no reversible error-in'overriding a general objection to the entire evidence.- In placing our decision, however, upon this ground, we must not be understood as affirming, that any portion"of the evidence was illegal. Upon that subject we express no opinion..

[3.] The counsel for the prisoner, though confessedly able, hav'e pointed out-nothing objectionable in the charge of the court; and if ¡there be any error in it, prejudicial to the prisoner, a careful examination has not enabled us to discover it. Construing the, charge in reference to the fact, indisputably established, that the killing was perpetrated With a deadly weapon, we think there can be no doubt that the instruction as to the presumption of malice was correct. — York's case, 9 Metcalf, 93; 3 Green. Ev. § 14.

Judgment affirmed.