Morrison v. State , 84 Ala. 405 ( 1887 )

STONE, C. J.

The Circuit Court of Tuscaloosa county sits two weeks, commencing on the sixth Mondays after the fourth Mondays in February and August of each year; and tlie criminal docket is taken up on the second Monday of each term. — Code of 1886, p. 225, sub-section 5, and note. The Spring term, 1888, commenced on April 9. On Friday of ■ the first week (April 13), the court made an order setting Wednesday 18tli for the trial of James Morrison, charged with murder, he having been arraigned at a former term, and pleaded not guilty. The court thereupon proceeded to draw from the jury box the names of thirty persons to serve as special jurors in said cause, and ordered that said thirty special jurors, “together with the regular jurors drawn and summoned for the second week of this term of the court, shall constitute the venire for the trial of this cause.” This order was a literal and strict compliance with the statute, when an order setting a day for the trial of a capital felony is made during one week, and the trial is to take place during another week. — Jury Law, approved Feb. 28, 1887, &11; Posey v. State, 73 Ala. 490.

The officers charged with the duty of drawing names out from the box, or hat, in organizing the jury, failed to place all the names in the hat in the first instance. This mistake was not discovered until those put in the hat were all drawn out; thirty-five in number. At that time only seven jurors had been selected. The court directed the remaining names —those left out by mistake — to be placed in the hat, and for the drawing to proceed. “The defendant, objected, on the ground that the slips contained in the hat, having all been drawn therefrom, and the jury not having been made up, the court should direct the sheriff to summon talesmen, under the provision of section 4324 of the Code of 1886, from whom to complete the jury.” This objection was overruled, and an exception reserved.

We might content ourselves with the statement that the ground of the contention was unsound. If the court had then ordered talesmen to complete the jury, it would have been a manifest error, unless, perhaps, the defendant’s request would have precluded him from insisting on it as a ground of reversal. We can not hold that the court erred in refusing to do that at the defendant’s request, which would have been error if done without his consent. If error had been committed, that was not the remedy.

When all the panel had been drawn out and passed on— those last put in as well as the first — the jury was still incomplete, and talesmen had to be summoned. This demonstrates that the mistake did the defendant no injury. -

When the venire was exhausted, and the jury still incomplete, talesmen were summoned under the direction of the court, and the jury completed. It is objected for defendant, that the court’s order for summoning these talesmen ought to have been entered of record. — Posey v. State, 73 Ala. 490; Sylvester v. State, 71 Ala. 17; and Spicer v. State, 69 Ala. 159, are relied on in support of this objection.

What was said in Posey’s case had reference to the order to summon a special venire for the trial of a capital case. The language of the statute then under consideration is, “The court must make an order, commanding the sheriff to summon,” &c. — Code of 1876, § 4874; Code of 1886, § 4320. That order, we held, must be entered of record. The order to summon talesmen to complete the jury after the venire is exhausted, is expressed in the following language: “The court shall order the sheriff to summon twice the number to complete the jury,” &c. The uniform practice has been to give such orders orally, and we have no wish to declare a different rule. There is nothing in this objection.

We think there was no error in admitting the evidence of the witness Kale. True, he was but the agent of Webb when he discharged the defendant from employment, and it is not shown that Webb either sanctioned, or knew of the discharge. The discharge was permitted to stand, however, and neither Webb nor his partner undertook to annul it. Agents are under the control of their principals, and are presumed to consult their wishes. We think the dischage was a circumstance the jury might well consider, in determining whether or not there was a motive for the deed. — Kelsoe v. State, 47 Ala. 593; Hudson v. State, 61 Ala. 333. The finding of the jury proves that they were not convinced that the killing was done with malice aforethought.

The charge given at the instance of the solicitor is in exact conformity with many of our rulings, and is free from error. Ex parte Brown, 63 Ala. 187; Eiland v. State, 52 Ala. 322; Brown v. State, 74 Ala. 478; Story v. State, 71 Ala. 329; Wills v. State, 73 Ala. 362.

The theory on which drunkenness may sometimes reduce a homicide from murder to manslaughter is, that it may so cloud the mind, so obscure the reasoning powers, as to satisfy the jury that the perpetrator could not have formed the design to take life. This, it is said, repels the idea that there was a preconceived purpose to kill. The drunkenness, however, to produce this mitigating effect, must be such as to .render the accused incapable of forming or entertaining a specific intention; of premeditation, or deliberation. — Tidwell v. State, 70 Ala. 33; Ford v. State, 71 Ala. 385. A person may be “under the influence of liquor,” may be even “intoxicated,” and yet not so drunk as to render him incapable of premeditation, of deliberation, of forming an intention. The charge asked by the defendant was rightly refused.

Affirmed.