129 Ala. 6 | Ala. | 1900
The evidence discloses that the grand jury was composed of fifteen persons, and that, itlie “grand jury returned into open court, certain indictments upon each of which was entered ‘A true Bill,’ signed by the foreman of the grand jury, which were ordered to be filed in open court in the presence of the-grand jury,” etc. The indictment in this case is indorsed, “A true bill. N. J. E. Walker, Foreman Grand Jury. Filed in open court, this July 25th, 1900.” It ithus appears, that the indictment shows by its indorse-ments, that it was presented in open court to the presiding judge, by the foreman of the grand jury in the-presence, of eleven other jurors besides the foreman. It required 15 to constitute a legal grand jury, and the-concurrence of art least 12 of their number to find an indictment. — Code, §§ 5022, 5039. When the record shows that the grand jury returned the. indictment into open court, iit appears that 12, if not the entire body of the grand jury, performed this service.
To the objection, that “the judgment of the court fails, to show the order of the court to- the sheriff to summon the special jurors drawn -for ifche trial of the defendant,” it is sufficient to say, that section 5004 of the-Code does not require that the judgment entry shall disclose such an order. Its requirement in this respect is, ithat “the presiding judge shall then and there-publicly draw therefrom [the jury bos referred to] not less than 25 nor more than 50 of said names for each capital -case, a list of which shall be immediately made-out by the clerk of said court and an order issued to the sheriff to summon the same upon the day set for trial,”'
The bill of exceptions states, that “the presiding judge [on the arraignment of the defendant] ordered the sheriff to bring into open court the jury box, preparatory to drawing the jurors for the trial of the defendant.” The judge then drew from the box the slips of paper on which the names of the jurors were "written, and handed them to the clerk without calling aloud (the names of the persons thereon. The defendant requested the judge to call aloud their names, as the jurors were drawn, which he refused to do, and to this refusal the defendant excepted. When (this request was made, the judge informed the defendant and his attorneys, that they could see the names at any time, if they wished, •and directed the clerk to allow them to see the names ■and (the slips on which they were written, at any time, •and directed the clerk to make a list of them at once, and hand it to the defendant or his attorneys, and to carefully preserve the slips till the day of trial, for comparison on that day.
The statute does not require the judge to call out the names of the jurors drawn from the box, and he seems to have complied substantially' with its provisions. There was no secrecy about the procedure, but it was all done publicly and in a manner not in anywise to ■prejudice the defendant.
Tom Bowers was examined for the State and testified that he did not see any pistol on deceased after he was killed, and also to incriminating facts against defendant. The bill of exceptions incites, “The defendant then asked the following questions, to laj" a predicate 'for the. impeachment of the witness: ‘Did you on that day loan your pistol to deceased; and did you tell Mr. 'Sidney Sims, to-day, at his store in Troy, that you had a 32 pearl handle Smith & Wesson pistol, and had loaned lit out?’ ” and again, if he bad not told Sims, at the same time and place, that he had loaned it to deceased. The State objected on the score of immateriality and the court properly sustained the objection. It was
What itlie court in its general charge, -charged the jury, as to the impeachment of the witness Beck, and how the jury were to consider his testimony, was not subject to the exception taken to it in argument, that it was a charge -on the effect of the evidence. It was simply to explain to the jury their. duty in considering contradictory statements of the witness, if they found he had made them.
The -defendant was tried -on an indictment which charged murder in. the first degree. He was -convicted of murder in the second degree. If the count committed error in defining murder in the first degree, which it is unnecessary to -decide, it would -seem that the -charge involved no injury to the defendant. — Code, § 4333; Winter v. The State, 123 Ala. 1.
The court in its general -charge, sit-ated as a predicate for its -charge on manslaughter, what in substance he had already charged them a-s to self-defense. What that former charge was, is not set out; but the court said, “I have instructed you, if you find the defendant was not free from fault, or that there was no impending necessity for him to strike the blow, or that he could have withdrawn, that he cannot be excused upon the ground of self-defense.” What the -court here said was intended as a reference to and being substantially what he had previously -charged, and not as a literal quotation thereof. It was designed simply to recall their attention t-o what he had previously -charged. F-or the purposes for which the statement was made, if not as full and accurate a-s it might have been made, it contained no reversible error.
So it was in what followed, as to the charge on manslaughter. The -count-said, “Let me define to you manslaughter in the first degree a little more,” and added, “Now manslaughter in the first degree is where a man voluntarily, freely and of his own accord, puts in force against a person such an instrumentality that by the manner of its use and character of the instrument used,
The case was not voluminous in its. facts, and involved only plain, well settled and often repeated principles of law. The defendant, — judging from their numbering and lettering, — requested considerably over a hundred written charges, a number of which were given, and others refused. We have examined those refused, and find that they are either wholly bad or confused and misleading, abstract, argumentative, or otherwise faulty. It would require a lengthy opinion to criticise them and point out their defects, and would subserve no good purpose, to do so.
Finding no reversible error in the record, the judgment and sentence of the lower court must be affirmed.
Affirmed.
