45 So. 431 | Ala. Ct. App. | 1911
The defendant was indicted for murder, pleaded not guilty, was tried by a jury, found guilty of manslaughter in the first degree, and as punishment therefor was sentenced to the penitentiary for two years.
The presiding judge drew 13 names from the jury box, under all the formalities of law, which, with the 37 names drawn and summoned for the week in which the case was set for trial, constituted the venire from which the jury was to be selected to try the defendant. The bill of exceptions shows that when the case was called “the defendant, after showing the court that 12 of the jurors whose names were upon and formed a part of the venire served upon the defendant in this case were out considering a case which had just been submitted to them as jurors by the court, and that the fact that said jurors were out would reduce the list of jurors from which the jury would have to be selected
The present jury law (see Acts of 1909, p. 820) is modeled upon the act “to regulate the drawing and impaneling of grand and petit jurprs in Dallas county,” and that portion of the act which relates to the drawing and summoning of jurors in capital cases was held to be mandatory by our Supreme Court in the case of Evans v. State, 80 Ala. 4, where the court says: “The order of the court for summoning jurors, drawing the number of names required as special jurors, the service of the venire on the defendant, inquiring into and passing on the qualifications of the persons summoned, and causing the lists of those competent to be prepared, are all preliminary and necessary proceedings to a legal trial. * * * The statute contemplates and provides for a separate drawing, as well as a separate order. The intention of the statute is to provide for the trial of one defendant, or two or more defendants jointly— of one case — and preserves the singleness and continuity of the antecedent proceedings. At no-stage should they be complicated or connected with the proceedings in any other case.” In the above case, the court held that under the Dallas county jury law, now remodeled
In the case of Evans v. State, supra, the court further said: In Kimbrough v. State, 62 Ala. 248, it was held that the court need not delay impaneling a jury, when one or more of the regular jurors who are on the venire served on the defendant, are engaged in the consideration of another case, and cannot come into court voluntarily, nor be brought in-without disregarding the rights of some other persons, equally entitled to the consideration of the law. The ruling is founded on the presumption that, when the Legislature provided that the regular term jurors in attendance should constitute a part of the venire, it was contemplated that some of them might be engaged in the trial of another cause, and that the right of the defendant to have such regular jurors called is subject to the due administration of the law, and does not operate to delay or obstruct the business of the court.” The Legislature, in providing that two or more capital cases could be set for trial on the same day, and that, if the court deemed it proper so to do, one venire could be drawn for the trial thereof, intended that the court should have the power, if any of the jurors, special or regular, whose names appeared on the venire were actually engaged as jurors in the trial of another case when a capital case was called for trial, to have .the lists made up without such names and proceed to try such case without them. The record does not disclose whether there was more than one capital case set for trial on the day this defendant was tided,
When two or more capital cases are set for trial on the same day, and one venire is ordered, under the provisions of law, for the trial of those cases, then, if a trial of one of the cases is entered upon, and a jury is selected for its trial from such venire, it is left by the law in the sound discretion of the court to say whether the court will proceed to trial in the second case with the remaining jurors, or wait until the jury in the first case has returned its verdict. When only one capital case is set for trial, the court may proceed to the trial of other causes before calling the capital case, and if, when such capital case is called, some of the regular jurors drawn and summoned for the week are then engaged in deliberating, as jurors, on some other case, the court may also disregard the names of such jurors, and
The evidence in the case tended to show, on the part of the state, that the killing was not done in self-defense; but on the part of the defendant it tended to show that he shot in self-defense, and that, to all appearances, he was in imminent danger of losing his life at the hands of Tom Campbell, the deceased, and that defendant honestly believed that he was about to be shot by the said Tom Campbell when the defendant fired. Such being the state of the evidence, the defendant asked the court, in writing, to give the following charge to the jury.: “I charge you that if the defendant shot under the bona fide belief that his life was in danger, and had under all the circumstances reasonable cause to believe that he was in imminent danger at the moment the shot was fired, it would he immaterial whether there was such danger or not.” But the court refused to give the charge, and the defendant excepted. The above charge is substantially the same charge which was declared to be a correct statement of the law in the case of Kennedy v. State, 140 Ala. 1, 37 South. 90. In fact, it is a verbatim copy of the charge which was approved in the Kennedy Case, supra, except that in the Kennedy Case the concluding words were “such actual danger or not,” while in the charge under consideration the concluding words are “such danger or not.” It is evident that the words “such danger”
Reversed and remanded.