136 Ala. 1 | Ala. | 1902
Under the facts disclosed in the transcript before us, the Jurors, O. B. Newby, R. N. Bullington, J. D. Barksdale, N. J. Tribble and W. ÍYL Barksdale belonged to and in part constituted the regular juries organ-iced for the week though they had not been dra-wn as jurors for that week, but were summoned at the time the jurors were being organized to supply the places of persons who had been drawn and for any reason had failed to appear or been excused from attendance by the court. — Code,§ 5011; Brown v. State, 128 Ala. 12, 16. These persons were, therefore, constituents of the venire for the trial of the defendant composed, as the statute requires, of the special jurors drawn under section 5004 of the Code “together with the panel of the petit jurors organized for the week,” the case having been set down and coming on for trial on a day of the week in which the order to that end was made. — 'Code, § 5005; Brown v. State, supra. The names of these men as members of the regular juries for the week, and in that capacity
As a predicate for the introduction of deceased’s dying declarations it was shown that he was shot in the body a.nd died from this wound three days afterwards, that a short time after the shooting, which occurred about ten o’clock at night, the wounded man said “he did not think he would live till morning, that he was going to die, and that he wanted to leave a statement of the facts.” He thereupon made the statements offered in evidence. The predicate was sufficient. — Cole v. State, 105 Ala. 76; Clark v. State, 105 Ala. 91; Johnson v. State, 102 Ala. 1; Bouldin v. State, 102 Ala.78; McQueen v.
The competency of the dying- declarations of Taylor, the wounded man, as against this defendant was adjudged on the former appeal in this case. — Smith v. State, 133 Ala. 73.
On the occasion of the fatal wounding of Taylor and at the scene thereof a public supper was being served. Taylor-was in possession of the grove where the supper was being served and had rented it to the persons giving the supper for that purpose. This defendant during the evening had flourished a pistol and declared: “We are going to break this thing up;” “We are going to break up this thing to-night,” and: “We are going to break this thing up before day ; we will break it up in damn row.” When making this last remark he was talking to Prank Orr. After this Prank Orr fired his pistol. Thereupon Taylor came from his house to the place where the supper was being had, and told Orr he. must not have any fuss and must stop it, and that he must not have any shooting there. Then Orr said: “I will shoot you,” and attempted to shoot Taylor. The latter grabbed his pistol and a scuffle over it ensued between him and Orr. Then, as Taylor seemed to be getting the better of the scuffle, Orr called Pink Botts to come and shoot Taylor, saying: “He has got my pistol and I cannot shoot him.” One witness testified that this call was: “Come on hoys,” or “come on Pink, he is about to get my pistol.” Both the defendant and Botts responded -to it, and came running to the place each with a pistol in his hand. Botts was a little in advance of the defendant and got immediately up to the contending parties. A by-stander supervened between the defendant and Taylor, Orr and Botts to prevent his getting to Taylor. Whereupon the defendant, still trying to get to Taylor and when only twenty feet away from him and Bottsi and Oit, cried out in a voice loud enough for Botts to hear: “Let me get to him.” Just after this Botts shot Taylor. Undoubtedly on this evedence it was open to the jury to find that the defendant was present aiding and abetting Botts in killing Taylor. So finding, defendant’s guilt vel non, and the degree of his guilt if guilty of the homicide at
It is stated in the bill of exceptions that “the defon dant requested the general charge, which the court refused to give,” and that defendant excepted to this ruling. No such charge — no charge of any sort in fact— is set out in the bill of exceptions. We, therefore, cannot review this action of the court. — Donnelley v. State, 130 Ala. 132. We may remark, however, that on the evidence the defendant was not entitled to the affirmative charge Avith hypothesis, and of course not Avit-hout.
We find no error in the record, and the judgment of the 'Circuit Court must be affirmed.