Harrison v. State , 79 Ala. 29 ( 1885 )

CLOPTON, J.

That a person, summoned and called as a juror on the trial of an offense which may be punished capitally, or by imprisonment in the penitentiary, thinks that a conviction should not be had on circumstantial evidence, is made by statute a good cause of challenge by the State; but the right is not extended to the defendant, and may be waived by the State. By electing to challenge one or more persons for such cause, the State is not estopped from waiving the same cause of challenge as to any person who may be subsequently drawn as a juror. The defendant has no cause of complaint, if the State forbears to exercise the right to challenge any juror for the cause mentioned.—Code, § 4883; Murphy v. State, 37 Ala. 142.

Evidence of threats made by the accused is admissible to show his anim.us at the time of committing the offense. To be admissible, they must indicate a purpose to do some particular persons an injury, or must be expressions of ill-will or hate towards a class, of which the deceased is one ; and must be capable of such construction as to show reference to the deceased. Where the threats are capable of being so construed, considered in connection with the other evidence, although no particular person is specially designated, and are not so far removed from the inquiry involved in the issue before the jury as to give no aid or direction in determining that issue, they are admissible ; and their reference to the deceased is a question for the jury, to be determined on the whole evidence. The bill of exceptions does not purport to set out all the evidence ; and in such case, every reasonable intendment in favor of the ruling of the court will be indulged. The threats, to which objection was made, fall within the rule of admissibility, their reference to the deceased being left to the consideration of the jury.—Ford v. State, 71 Ala. 385; Jones v. State, 76 Ala. 8.

The record does not show that the charge requested by the defendant, and refused by the court, was asked in writing. The court is not required to give any charge, not requested in writing; and we will not presume the charge was in writing, in order to-put the court in error. This fact not appearing, we can not consider the charge, even if it be conceded that it asserts a correct legal proposition, as to which we express no opinion.—Winslow v. State, 76 Ala. 42.

Affirmed.