Moseley v. State , 107 Ala. 74 ( 1894 )

COLEMAN, J.

The defendant was convicted of murder in the second degree. There are but two exceptions in the record to the ruling of the trial court.

The defendant moved the court to quash the venire, upon the ground, that the court of its own motion had excused from attendance without his knowledge or consent and in his absence, certain jurors summoned on the regular panel, whose names were on the special venire served on him, from which the jury, for his trial, was to be empanelled. The order of the court was, “ that said j urors be excused from further attendance for reasons deemed sufficient by the court.” The authority of the court to excuse a juror by asimilar order, arose in the case of Farris v. The State, 85 Ala. 1, and it was said, “It must be presumed that judges, in excusing jurors, act on correct principles, and disclrarge them only for good and sufficient reasons,” and it was decided, that the court committed no reversible error, in excusing the jurors. The rule settled by the decision in the Farris Case, was recognized as the law, in the subsequent case of Maxwell v. The State, 89 Ala. 150. The facts of the case of Sullivan v. The State, 302 Ala. 135, are not stated. When the principles declared are referred to the facts as they appear in the record, there is no conflict in the case with our conclusion.

The second exception relates to the refusal of the court to charge the jury as requested by the defendant. The charge requested, when referred to the evidence, was calculated to mislead the jury. Some of the facts predicated in the charge were controverted, and the inference, which the j ury by the charge were authorized to infer from them, is stated, in a manner calculated, to influence the jury to draw the inference stated, in the case at bar. In this respect it is a charge on the weight of the evidence, and an invasion of the province of the jury.

Affirmed.