40 So. 405 | Ala. | 1906
The venire from which the jury to try the case was to be selected was composed of 100 jurors, including the regular jurors who were summoned to serve during the week of the court in which the defendant’s case was set for trial. This was in accordance with the jury law applicablé to Montgomery county. ‘
While the jury to try the cause was being selected, the name of John Jones was drawn. The bill of exceptions recites that juror Jones did not answer, and when Jones failed to answer the court announced that lie had at a previous day, when organizing the regular jury, excused him as a juror for good and sufficient reasons then made known to the court. It is conceded by appellant that the court’s action in this respect was in keeping with previous decisions of this court, but he insists that those de: cisiona are unsound. The action of the court was authorized by section 5020 of the Code of 1896, and we are sahsfied Avith the foimier decisions upon the question.— Plant’s Case, 140 Ala. 52, 37 South. 159; Moseley’s Case, 107 Ala. 74, 17 South. 932; Maxwell’s Case, 89 Ala. 150, 7 South. 824; Thomas’ Case, 124 Ala. 48, 27 South. 315; Fariss' Case, 85 Ala. 1, 4 South. 679. The last cited overrules Parsons’ Case, 22 Ala. 50, which held that to excuse under circumstances like those shown in the case at bar Avas error. The court did not err in excusing the juror Jones.
Section 1795 of the Code of 1896 provides that: “No objection must be alloAved to the competency of a witness because of his conviction of any crime, except perjury or subordination-of perjury; but if he has been convicted of other infamous crimes the objection goes to his credibility.” The object and effect of this statute was declared in the recent case of Gordon v. State, 140 Ala. 29, 36 South. 1009, it Avas also declared in that case that evidence of cormction of a crime Avhich is not infamous is
The witness, Jim Milligan, who was examined by the defendant, having testified that he knew the character of defendant’s witness Tim Harris, and that it was good, the court properly allowed the state to ask Milligan, on cross-examination, this question: “Did you ever hear that Tim Harris was turned out of church down there for living in adultery with a negro woman.” The question -was competent for the purpose of testing the value of the evidence of witness Milligan, and not as affecting the character of the witness Harris. — Thompson’s Case, 100 Ala. 70, 14 South. 878; Moulton’s Case, 88 Ala. 116, 6 South. 758, 6 L. R. A. 301; Smith’s Case, 103 Ala. 57, 15 South. 866; Holmes’ Case, 88 Ala. 26, 7 South. 193, 16 Am. St. Rep. 17; Terry’s Case, 118 Ala. 79, 23 South. 776.
The indictment charged that the defendant: killed Alex. Patterson, “by striking him with an instrument to the grand jury unknown.” The evidence showed that defendant killed the deacesed by striking him on the head with a rock. Charges 1, 2 and 3, refused to the defendan t it is argued by counsel, were asked upon the theory that a rock is not an “instrument,” within the meaning of the
Charge 4, refused to defendant, is a verbatim copy of charge 12, which was held good in Deal’s Case, 136 Ala. 53, 34 South. 25. But in that case the court said: “In view- of the whole evidence, and especially of that phase of it favoring the defense, the defendant was entitled to have the jury instructed as proposed by charge 12.” So the court construed the charge in that case in connection with the evidence, and this rule should be observed by this court in construing all charges refused or given by the trial court. — Howard’s Case, 108 Ala. 571, 18 South. 813. In the case at bar there was evidence that a difficulty between defendant’s wife and daughter on one side and the daughter of deceased and himself on the other side was going on, and that defendant’s wife sent her daughter to the house to tell defendant to come at once; that defendant did go at once to where the parties were engaged in 'the difficulty, and that the difficulty in which the deceased was killed was but a continuation of the difficulty between defendant’s wife and daughter and deceased’s daughter. So it is clear, under the evidence, that charge 4, even under the Deal Case, should have hypothesized freedom from fault on the part of defendant’s wife and daughter, and, failing to do so, it was well refused. Sherrill’s Case, 138 Ala. 3, 35 South. 129.
The presumption of innocence does not necessarily attend a defendant “throughout the entire trial,” but, as was said in Waters’ Case, 117 Ala. 108, 22 South. 490, “only until it is overturned by evidence which convinces the jury of defendant’s guilt beyond a reasonable doubt.” Newsom’s Case, 107 Ala. 133, 18 South. 206. In this respect charge 5, requested by the defendant, differs from charge 18, which in Bryant’s Case, 116 Ala. 445, 23 South. 40, was held a good charge, and the court properly refused it. — Waters’ Case, supra.
Affirmed.
