140 Ala. 52 | Ala. | 1903
Before entering on the trial, defendant moved to quash the venire on the ground that the names of three of the special jurors drawn for the trial appeared on the list served on the defendant, when in fact these persons had not been summoned as jurors; and on the further ground, that one Bryant had been excused by the court, from the trial of said cause without the knowledge of defendant.
There was no merit in the first ground of the motion. These three men were special jurors, and though not summoned, their names were properly placed on the list served on the defendant.-Code, § 5005; Caddell v. State, 129 Ala. 57; Webb v. State, 100 Ala. 47.
Nor was there merit in the second ground of the motion, as to the juror, Bryant This person was of the regular panel drawn and summoned for the second week of the term. He did not attend court, and sent an excuse for his absence, which the court held sufficient, and excused him for the week. The excuse offered by him is not shown, but it is stated, that it was held good by the court. We must presume it was for a “reasonable or proper cause,” in which case the court had the authority to excuse him. — Code, § 5020; Thomas v. State, 124 Ala. 48; Webb v. State, 100 Ala. 47.
The solicitor asked one of the witnesses for the State: “Did you know anything of a difficulty between the defendant and the deceased on the day prior to the killing?” The objection of the defendant on the ground of irrelevancy and immateriality, was overruled. In this there was no error. The question did not call for the particulars of any difficulty, but simply inquired if he knew anything of a difficulty. It was not objectionable on its face, and, moreover, it was in no sense injurious as it was not shown to have been answered.
We have been unable to see that the confession of defendant, testified to by witness Dudley, was improperly admitted. It was shown that it was freely and volun-
The witness Harris, for tbe State, who witnessed the homicide, was asked by the solicitor, “What happened immediately after Thomas was killed?” An objection by defendant was overruled. The witness answered, that the defendant stated, that he would kill that other “son of a bitch.” This evidence was clearly of the res gestae of the killing.-Seams v. State, 84 Ala. 410; Stitt v. State, 91 Ala. 10. What the defendant said was voluntary, and was an implied confession that he had killed the deceased, and tended to show his animus in so doing. Bush v. State, 136 Ala. 85.
Refused charges from one to four, inclusive, were each properly refused. They fail to hypothesize one or more of the elements of self-defense, or refer the question of self-defense to the jury without setting out its elements.
The 5th charge was abstract. There was no evidence to show that deceased was killed in the house of defendant.
Affirmed.
