Stewart v. State

137 Ala. 33 | Ala. | 1902

HARALSON, J.

The- indictment charges that defendant “did. unlawfully and with malice aforethought kill Will Mims” etc. The. conjunction “and,” which we italicise for convenient reference, is spelled out, and in the copy served on the defendant, the character, “&,” in place of “and” was employed. That character is an abbreviation in common use for “and”; is well understood and is never mistaken as standing for any other word than “and,” with which it is identical in meaning. — 1 Am. & Eng. Ency. of Law (2d ed.), 97. There was no ground for quashing the venire on this account.

The fact that the given name- of Duke, one of the regular jurors drawn for the Aveek set for the trial of defendant, Avas Avritten Dove, and in the. list served on the defendant the name avus Avritten Dave, constituted no ground for quashing the venire. The proof on the trial of the motion shotted that there was no Dove Duke residing in the county or in Camden heat, hut there tvas a farmer in said beat by the name of Dave Duke. “No objection can be taken to any venire facias for a petit jury, except for fraud in drawing or summoning the jurors,” the protdsions of the chapter in the Code in reference to such dratving and summoning being merely directory. — Code, § 4997; Baker v. State, 122 Ala. 1; Thompson v. State, Ib. 12; Childress v. State, Ib. 21.

The 4th ground for quashing is not true in point of fact. Burrell Dulany Avas drawn, it is true, by the jury commissioners, to serve as a juror for the third week of said court, but the return of the sheriff, instead of shoAving that he. was served by him, as is alleged on the ground t'o quash, sIioavs that he was “not found,” and for that reason he avus not on the jury, and his name could not. appear on the list served on the defendant for his trial.

The 5th ground, even if meritorious, was not proved. The State proved that there was but one Frank Moore, Jr., in the county. When called, said Moorei swore that he was under twenty-one years of age, and the court excused him on that account, as it had the right to do. Code. § .5020. It Avas not shown, as alleged in the motion, that the sheriff summoned another and different Frank Moore, «Ir., from the one drawn by the commissioners.

The 6th ground was not well founded in fact. As shoAvn by the record, the. venire in the Ethridge case, set for trial the same day,- — one jury having been drawn under the local statute for the trial of this and that case, — was not quashed, as assumed in the motion, but ah objection by Ethridge' to going to trial on the ground that he had not been served with a copy of the indictment, Avas sustained. The fact that the nresiding judge first entered on his docket that the- venire was quashed, and the same, day this entry was changed, in order to conform it to what was in fact done, so as to show "that the defendant’s objection to going to trial was sustained, and not that the venire was quashed, was no ground for quashing the venire in this’ case. The court had the right to correct a mistaken entry on its docket.

Peter Quarles, a witness for the State, testified that he and defendant went to the church the night of the killing; that about 8 or 9 O1’clock, that night, defendant asked witness if he had seen Will Mims, that he owed him, defendant, $3.00, and he was going to kill him that night or in the morning, and witness told him not to do it, “he was too nice a man.” After this, defendant went into the church where deceased Aims. On the cross examination the witness Avas asked by defendant’s counsel : “If you Avere: such a good friend of Will’s, AArhy did you not go and tell Will, Jim was going to kill him?” The court sustained an objection to the question, and in this there was no errer. There Avas no evidence to show that the Avitness Avas a good friend of the deceased, nor Avas there any evidence at the: time this question Avas asked, that he had not told the deceased of the threat of defendant to kill him, and the question was bad in assuming both these facts.

The evidence for the State tended to show, that after an altercation of Avords betAveen defendant and deceased about a debt of $2.25 that defendant claimed deceased owed him, and after the deceased paid that sum to defendant, he Avalked aAvay from the defendant to near the center of the church and stood between two benches, some, twelve or more feet from defendant, when the latter took deliberate aim and shot and killed deceased. The defendant introduced evidence tending to show that when deceased was. shot, he was approaching defendant and Avas very near to him., when the latter struck him AArith a pistol, which accidentally discharged and killed deceased. After the defendant closed the examination of his witnesses, the State in rebuttal called three witnesses and asked each of them: “If there was anv powder-burn on the clothes of Will Mims?” The defendant objected on the ground that it “avus not in rebuttal and called for- new matter.” The court overruled the objection, and in this, it is too clear, for argument, that it committed no error.

Charge 1 requested by the State as it appears in the record, reads, “that if the jury find from the evidence in this case, beyond all reasonable doubt, that the defendant in Wilcox county, Alabama, and before the finding of this indictment, purposed killed the' deceased,” etc.' The word purposed, is plainly a self-corrective clerical mistake for the word purposely, and we will so treat it. — Lang v. State, 84 Ala. 4. Thus construed, the charge, and the one following, numbered 2, were free from error, as Ave have frequently held.- — Lang v. State, 84 Ala. 1; Wilkins v. State, 98 Ala. 1.

, Refused charge 1 requested by defendant was properly refused. It predicated an acquittal on a part of the evidence. — Winter v. State, 132 Ala. 32; Nicholas v. State, 117 Ala. 33; Turner v. State, 124 Ala. 60.

As an instruction on self-defense, charge 2 was bad. It ignored the question of apparent danger, necessity to strike and the duty to retreat. Moreover, if defendant Avas at fault in striking deceased intentionally with a pistol, and it accidentally Avent off and killed deceased, the defendant might have been found guilty of manslaughter. — Fitzgerald v. State, 112 Ala. 34. For some of the same reasons charge 4 was properly refused.

- Charge 3 was argumentative, and singled out and laid stress on a portion of the evidence.

- It is insisted that the judgment should be reversed because the minute entry does not show that the jury was charged by the court as to the law of the case. We will presume that the trial court did its duty in this respect. — Washington v. State, 81 Ala. 35.

The verdict was -sufficient- to sustain the sentence.. Noles v. State, 24 Ala. 672.

We find no error in the record, and the cas? must he affirmed.

Affirmed.