57 So. 469 | Ala. | 1912
The defendant was indicted for a capital offense. His trial was set for Thursday, November 10, 1910. The special venire for his trial was
The defendant moved, in the court below, to quash the venire, upon the ground that service thereof was not effected “forthwith,” as required by section 32 of the jury law of 1909 (Acts Sp. Sess. 1909, p. 319). The motion was properly overruled. In section 29 of the jury law, it is provided that: “No objection can be taken to any venire of jurors except for fraud in drawing and summoning- the jurors.” The objection stated does not fall within the exception of the quoted provision of the jury law.
It is also provided, in section 32 of the jury law, that “any mistake in the name of any juror drawn or summoned is not sufficient ground to quash the venire or to continue the cause.” Accordingly there was no ground for quashal of the venire, arising from the fact that the name “William S. Morgan” was on the venire served on the defendant; whereas, “Seaborn Wilson Morgan” was the person summoned and appearing for service on the trial of the defendant.
There was no error in the allowance of this question, propounded by the solicitor on cross-examination of defendant’s witness Bat Savage, “Were you and his mother ever married?” On his examination in chief, this witness had testified “that he ivas the father of the defendant.” The question complained of related, as is obvious, to the very matter, viz., paternity, which the defendant himself had introduced before the jury. While it does not appear that the state could be benefitted by a refutation of the paternity which the witness
Charge 8 was well refused to defendant. It might be termed the assertion of a mere abstraction. However, one of its vices lies in the fact that it inveighs against a conclusion of guilt, to requisite certainty, if the jury find “in the whole evidence any reason” for a conclusion opposed to that of guilt. An entirely justified conclusion of guilt may be attained, notwithstanding a part of the evidence, considered without reference to other evidence, may show a reason opposed to that of guilt. We also think this charge was argumentative.
Charge 19, refused to defendant, pretermitted, in hypothesis, the essential element of good faith in his AvithdraAval from the difficulty in which he was the aggress- or (if so). — Hughes’ Case, 117 Ala. 25, 29, 23 South. 677, and Stillwell’s Case, 107 Ala. 16, 19 South. 322, among others. If good faith was not required to characterize the withdrawal of the assailant, such an one might avaii of that means to promote his OAvn advantage to effect a wrongful purpose.
The affirmative charges 25 and 26, requested by defendant, could not, on the evidence, have been given.
There Avas no error in refusing charge 27, requested by defendant. It was argumentative. Besides, the benefit of the substance of this charge was accorded the defendant in given (for him) charge 28.
Charge 29 singled out a particular feature of the evidence and sought to emphasize it. This alone justified its refusal.
No error appearing, the judgment is affirmed.
Affirmed.
Anderson, Mayfield, and Sayre, JJ., concur in all of the opinion, except that to which the following of their views refers: That the failure to serve the venire “forthwith” was error not cured by section 29 of the jury law, hut that it was error without injury, as the record shows that the copy of the venire was served at least two days before the trial.
