Young v. State

43 So. 100 | Ala. | 1907

DENSON, J.

— Before entering on the trial the defendant moved to quash the venire because nine of the special juror’s dx’axvn by the presiding judge, and xvhose names Avere served on the. defendant, were not summoned. It was shown on the' hearing of the motion that said jurors could not be found in the county by the sheriff. The motion was properly overruled. — Barnes’ Case, 134 Ala. 36, 32 South. 670; Caddell’s Case, 129 Ala. 57, 30 South. 76; Gregory’s Case, 140 Ala. 16, 37 South. 259; Webb’s Case, 100 Ala. 47, 14 South. 865.

The bill of exceptions shows that, in organizing the special jury to try the case, the names of the veniremen were drawn from the box in regular order, and 15 of those drawn, and who were served on the defendant, failed to answer; that they were not present, their absence, was not explained, nor did the court enter forfeitures against them. At the conclusion 'of the impaneling of the jury the defendant moved to quash the venire and strike the jury on account of the absence of the large number of jurors and their unexplained absence. Giving the defendant full benefit of the above recitals, we would say they show the 15 jurors were summoned and did not obey the summons — were not present. This furnished no ground to quash the venire. The law' was complied with when summons was served on each juror. .No duty rested on the court or the sheriff - to do any more. Even if the jurors had been in Andalusia, but out of the courthouse, there is no law or rule of practice in this state which requires that the court should have had them called at the door of the courthouse, or requiring that they should be sent for when their names.were called.- — Waller's Case, 40 Ala. 325. The fact that forfeitures were not entered against the absent jurors'-does not concern the defendant.

The declarations of Alf White, “Gome hack! it was an accident,” Avere undoubtedly a part of the res gestae, and Avere properly admitted. Moreover, it appears that the defendant in response to the declarations immediately returned. Thus it Avas competent as showing or tending to show the conduct and demeanor of the defendant at or about the time of the shooting. — Henry’s Case, 107 Ala. 22, 19 South. 23; Nordan’s Case, 143 Ala. 13 (9th head note), 25, 39 South. 406; Nelson’s Case, 130 Ala. 83, 30 South. 728; Steven’s Case, 138 Ala. 71, 35 South. 122; Harbour’s Case, 140 Ala. 103-109, 37 South. 330; Ferguson’s Case, 141 Ala. 20, 37 South. 448.

The state proved by one of its witnesses that, just before the shooting was done by the defendant, defendant had been playing cards Avith the crowd, the deceased included, and had lost all of his money; that defendant was mad and enraged, and grabbed np the cards from the ground, and said he was a good will to shoot through them. 'This was a minute or two before the shooting. Aside from the question of res gestae, this evidence was competent and relevant as tending to show the conduct and demeanor of the accused — his frame of mind — at or about the time he shot deceased, especially so when the only defense is that the killing was accidental. — Henry’s Case, 107 Ala. 22, 19 South. 23. Whether or not the defendant was guilty was clearly a question for the jury on the evidence; and charge 22, the general affirmative charge requested by the defendant, was properly refused. Charge 4, refused to the defendant, was properly refused, on the authority of Bones v. State, 117 Ala. 138, 23 South. 138. Charge 3 was properly refused, on the authority of Sloball’s Case, 116 Ala. 454, 23 South. 162; Wilson’s Case, 140 Ala. 43 (charge. 11), 37 South. 93. If it should be conceded that the refused charge, in these Avords: “If the evidence leads to a reasonable doubt, that doubt will avail in favor of the defendant” — is not defective in form, still the principle sought to be enunciated is covered by the charge in writing- given at the request of the defendant: “If the jury have a reasonable doubt of the guilty of the defendant, they should acquit him.” The refused charge is a substantial duplicate of the given charge.

We have found no error in the record, and the judgment of conviction is affirmed.

Affirmed.

Tyson, C. J., and Haralson and Simpson, JJ., concur.