Thayer v. State
138 Ala. 39
Ala.
1902
Check Treatment
HARALSON, J.

-On the 5th day of September, 1902, the defendant being) arraigned in open court, pleaded not guilty to the indictment, and a day was set for his trial. The cause appears to have been passed from time to time, until the 2nd day of December, 1902. On the latter elate, the defendant moved to quash the indictment, on grounds set out in his motion therefor, which motion, after hearing and due consideration was properly overruled. Thereupon, the defendant pleaded in abatement to the indictment, upon the same grounds that he had moved to quash it.

By act of the legislature (Acts, 1900-1901, p. 308), the solicitor is authorized to employ a stenographer, whose duty, among other things, is to attend' before the. grand jury when required by the solicitor, for the purpose of taking down and transcribing the testimony of witnesses before that body, who shall take an oath to faithfully discharge the duties imposed on him, and not to divulge any secrets that may come to his knowledge before the grand jury. The evidence introduced by the *48defendant in support of his plea, did not disclose anything more than urns authorized by the act referred to, to be done.'

It appears by the bill of exceptions that the solicitor demurred to this evidence; and the demurrer was sustained, but this appears only in the bill of exceptions. The judgment entry with reference to the plea recites, that “said plea coming on to be heard and determined by the court, issue being joined on said plea, after hearing the evidence and argument of counsel thereon and due consideration thereof by the court, it is ordered by the court, that said plea be and the same is hereby overruled.”

The ruling of the primary court.on a demurrer to the evidence when shown by bill of exceptions, is not subject to revision by this court. — Sivoly v. Scott, 56 Ala. 555. We are remitted, therefore, to the ruling on the plea, to the recitals of the judgment entry, ivhere they can only properly appear. That recital is, as has appeared, that the plea was overruled. The court was without authority to overrule the plea in abatement. The issue of fact presented by the plea, issue having been joined thereon, had to be tried, presumably by the jury, or by the court, if there was an agreement to that effect. The evidence offered on the trial of the plea, fully supported it, and if the issue had been tried before the jury, the defendant would have been entitled to the general charge, to find for the defendant on issue joined on this plea, and if tried by the court without a jury, judgment should have been entered sustaining the plea and abating the indictment. The evidence as set out in the bill of .exceptions, taken in connection with the statute providing- for a stenographer to attend before the grand jury, for the purpose therein specified, showed that H. O. Kennard, the stenographer, was properly before that body, and the fact of his. presence there, was no ground to quash or abate; the indictment, but this evidence was not within the issue presented by the plea and joinder of issue thereon. The sufficiency of the plea, when tested by demurrer, on the right of the stenographer to he before the grand jury, should have been replied to the plea. The State by taking issue on the plea, made *49it material, and entitled the defendant to judgment on the facts if alleged, notwithstanding the facts aliunde as to the right of the stenographer1 to be before the grand jury.

The juror, G. E. Harrison, was, upon his statements, clearly subject to challenge by the State. — Code § 5018; Murphy v State, 37 Ala. 142; Harrison v State, 79 Ala. 29.

The confessions made by defendant to the witness, Vallely, were clearly competent to go to the jury.— Washington v State, 106 Ala. 59.

Charge 1 by the defendant was properly refused. It is misleading and invasive of the province of the jury. It is always competent to prove that death resulted from a wound voluntarily inflicted by the defendant, and such evidence, together with all the other evidence in the case, is a matter proper for the consideration of the jury, in determining the guilt or innocence of defendant, and the grade of the offense, — if found to be guilty of any, — in the infliction of the wound. It can not be said as a matter of law, that the deadly character of the wound, furnished no inference of malice and premeditation, when considered with reference to all the evidence. Moreover, it singled out and sought to lay stress upon a single phase of the evidence. — Olcan v. State, 17 Ala. 588.

■ In charge 2, the words, “cool state of the blood,” are employed. Whether they mean the same thing as “deliberation,” also therein employed, and no more, we need not now determine. The direct effect of giving such a charge, would have been to confuse and mislead the jury. — Cleveland v. State, 86 Ala. 2.

Charge 3 invaded the province of the jury, and was properly refused.

The predicate laid for charge 4, was not sufficient for its giving. Moreover, it ignored the question of freedom from fault in bringing on the difficulty.

All that is predicated in charge 5 may be true, and yet defendant may, under the evidence, have been guilty of contributing bv his conduct to bring on the difficulty, and may have had reasonable mode of escape.

Charge 6 was bad. Defendant might have been guilty *50of manslaughter in the first degree, if he had no actual intention to take life. — Lewis v. State, 96 Ala. 6. • For like reasons, charge 7 was properly refused.

Charges 8 and 9 exacted too high a degree of proof— Griffin v. State, 90 Ala. 588.

Charge 10 is identical with one considered and condemned in Yarbrough v. State, 105 Ala. 45, 56.

Charge 11 lias been too often condemned to require further notice..

Reversed -and remanded.