72 Ala. 201 | Ala. | 1882
We can not perceive that in the organization of the grand jury there was the least irregularity. The fact that two of the persons drawn and selected were not summoned, and yet voluntarily appeared, the one being excused from service by the court, and the other serving, is not an irregularity. Without the service of notice by the sheriff, they could appear voluntarily; and appearing, they were as subject to the duty of jurors, and to the control of the court, as if they had attended in obedience to a summons. If' it be true that a person was summoned as a juror, who was not drawn and selected, it is also true that he did not appear, and was not put on the jury.
2. The defendant was present in court when the day for the. trial was set. The trial was entered upon on the day succeeding the day set. The presumption from the silence of the record is, that for some sufficient reason the cause was'continued over to the day upon which the trial was had. Such a continuance, though not entered on the minutes, as would be more proper, is presumed in the absence of objection and of all evidence to-the contrary.
3. The juror Smith was the head of a family, for which he-was providing, and who dwelt with him. Though the title to the premises on which he resided may have been in his wife, as • her husband and trustee, he had of them rightful possession and control. Within the strictest meaning of the term, he was a householder.—Aaron v. State, 37 Ala. 106.
4. Whether the family of the deceased were of the opinion that he would recover from, or die of the wounds he had received, was not a relevant inquiry. It was admitted that his declarations, which were introduced in evidence, were made under a sense of impending death; and the force of the admission, or the weight of the declarations, could not be lessened,, because his family were more hopeful, and believed he would recover.
5. The absence of all appearance of blood on the clothing of the accused, immediately after the killing, was not a fact tending to his exculpation. It was-not shown, or offered to be shown, that it was probable from the nature and character of the wound, or the circumstances under which it was inflicted, stains of blood would have been found on the person or clothing of the perpetrator. A fact or circumstance not having a tendency, direct or immediate, to the proof or disproof of the mat
6. The flight of a person accused of a crime, at or about the time he is accused or suspected, is a fact which maybe received in evidence against him. The force of it as criminating him depends upon its connection with other criminating facts. A search for the accused at the place of his reputed residence, soon after the homicide, and at places to which it was reasonably supposed he had gone, connected with the failure to find him, tended to show that he had fled, and was properly received in evidence. Bowles v. State, 58 Ala. 335.
7. Under the present indictment, a conviction could have been had for any or either degree of criminal homicide, of which guilt was shown by the evidence. — Code of 1876. § 4904. The former verdict, finding the defendant guilty of murder in the second degree, operated an acquittal of murder in the first degree. The acquittal was final and conclusive, and was not impaired because of the reversal of the judgment of conviction upon appeal to this court.—Bell v. State, 48 Ala. 684; Berry v. State, 65 Ala. 117. The defendant could be tried again only for the offense of which he had been convicted, and the degrees of criminal homicide included in it. Murder in the first degree includes every element and ingredient of murder in the second degree. In view of the particular circumstances of the case, the instruction of the City Court, that though the jury were convinced of the defendant’s guilt of murder in the first degree, of that offense he could not be convicted, but could be convicted of the less offense necessarily involved in it, murder in the second degree, was proper.
8. The law infers from the use of a deadly weapon an intent to kill, or to do grievous bodily harm, because the man must be taken to intend the necessary and usual consequences of his act. And if the circumstances do not show excuse, or justification, or immediate provocation, the presumption of malice is drawn conclusively.—Hadley v. State, 55 Ala. 31; Ex parte Nettles, 58 Ala. 268. The instructions to the jury upon this point were more favorable to the accused than he could of right demand.
9. The instruction requested by the appellant was properly refused. It referred to the jury, for consideration and determination, the question whether the weapon employed in the killing was, in its nature and character, a deadly weapon; which is, generally, not a question of fact for the jury, but of law for the decision of the court.—2 Bish. Cr. Law, § 680; State v. Craton, 6 Ired. (Law), 164; State v. West, 6 Jones (Law), 505. A deadly weapon is one, not, as asserted in the instruction, a blow from which would ordma/riVy produce death, but one from
"We find no error in the record, of injury to the appellant, and the judgment must be affirmed.
