59 So. 321 | Ala. Ct. App. | 1912
The defendant ivas charged with murder in the first degree, and was convicted of murder in the second degree.
It was not error for the trial court, upon being informed, during a recess of the court after the jury was selected and impaneled, but before the trial was entered upon, that one of the jurors had expressed an opinion as to the guilt or innocense of the accused, to examine ex mero motu the juror and ascertain if he had expressed an opinion that the defendant should be either acquitted or convicted. It is the duty of the presiding judge, in so far as lies within his poAver, to see that the case of the state and the defendant is submitted to a fair and impartial jury that have no fixed opinion of the guilt or innocence of the accused. And Avhen it is brought to the attention of the court that such a condition does not exist as to one of the jurors about to enter upon the trial of a case it is entirely proper for the court to examine and inquire into the matter.
The statement of counsel in brief as to Avhat the judge “inserted” in the bill of exceptions in connection with the examination of this juror cannot be considered. We take the record, including the bill of exceptions, as set out in the transcript as certified by the clerk, as correct in every particular. If the bill of exceptions as signed was incorrect, appellant should have moved to establish a correct bill, and, not having done so, cannot be heard to make ex parte statements in brief as to what the judge “inserted.”
The defendant seasonably objected to the examination of each of the six state’s witnesses, called in rebuttal to prove the defendant's general bad character, not being limited to a time prior to the commission of the offense for which he was being tried. The court allowed these witnesses to testify to the general character of the defendant, without limitation to a period up to the time of the commission of the offense, over the objection made by the defendant specifying this particular ground of objection in each instance, and in this the court was in error. "Evidence of character must be confined to the time of, and anterior to, the alleged commission of the offense for which he is being-tried.” — White v. State, 111 Ala. 92, 96, 21 South. 330, 331. See also, McGuire v. State, 2 Ala. App. 131, 57 South. 51; Griffin v. State, 90 Ala. 583, 8 South. 812; Brown v. State, 46 Ala. 175; Smith v. State, 118 Ala. 117, 24 South. 55; Gordon v. State, 140 Ala. 29, 36 South. 1009.
For the benefit of the court upon another trial, we call attention to what was said by the Supreme Court, in Smith v. State, 142 Ala. 14, 39 South. 329, in reference to the admissibility of evidence of the deceased being a drinking man.
The oral charge of the court, construed as a whole, is a correct statement of the law as applied to the facts; and those portions to which an exception was noted are not available in any instance as reversible error.
The correct propositions of law contained in the refused charges seem to have been substantially covered by the given charges.
For the errors pointed out, the case must be reversed.
Reversed and remanded.
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