Dorsey v. State , 107 Ala. 157 ( 1894 )

COLBMAN, J.

The defendant Avas convicted ofmurder in the second degree. The first exception reserved! arose upon the ruling of the court Avhile empanelling a jury. A juror’s name Avas drawn, avIio, at the time, was , a member of a jury then engaged in considering a ver-' diet in another case. The court directed the name to be.. set aside, and for the drawing to proceed. The defendant objected, claiming that, as the juror had been summoned in his case, and his name put upon the list served upon him, he had the right to challenge or accept the juror.

Exceptions of this character, and there have been several before this court, grew out of a misconception of the decision in the case of Evans v. The State, reported in 80 Ala. 4. The decision in that case was based upon a special jury law for Dallas county. The case of Chamblee v. The State, 78 Ala. 466, though reported earlier, was, in fact, rendered subsequent to the case of Evans, and the distinction is there stated. The course pursued by the trial court, was in accord with the uniform ruling of this court upon the question.—Kimbrough v. The State, 62 Ala. 248; Redd v. The State, 69 Ala. 256 ; Shelton v. The State, 73 Ala. 8 ; Johnson v. The State, 87 Ala. 42; Cole v. The State, 105 Ala. 76.

The court did not err in admitting in evidence the coat worn by the deceased at the time of the killing, in which was a rent or hole, caused by the shot which resulted in his death. The rent made by the shot was a part of the transaction of thé killing, and tended to show the relative position of the deceased toward the defendant, and the mortality of the gun shot wound. It was also corroborative of the evidence of the witnesses who testified as to the shooting. The lapel of the coat was a silent witness, but none the less effective, to show where the fatal shot entered the body of the deceased.— Watkins v. The State, 89 Ala. 82.

The court did not err in refusing the first charge requested by the defendant. The plea of self-defense cannot be successfully maintained, without showing that there was no reasonable mode of escape, except in the specified cases, where the law does not impose the dtity of retreat. The fact that one person without provocation is assaulted by another does not justify the assailed in standing his ground and slaying the assailant unless the peril to life or limb is imminent and there is no reasonable mode of escape. The charge was calculated to mislead.—Holmes v. The State, 100 Ala. 80; Naugher v. The State, 105 Ala. 26 and authorities cited.

The second charge requested by the defendant does not possess a single element of sound law. If the jury yyere satisfied “that there was no reasonable appearance of danger” to defendant, or if the defendant failed to create a reasonable belief in the minds of the jury, that there was no reasonable mode of escape, in either event, it would be the duty of the jury to find that the plea of self-defense had not been sustained. Furthermore, this charge omits the indispensable condition, that the defendant was free from fault in bringing on the difficulty.

The third charge requested, was properly refused. Tho mere fact that a party is retreating when he shoots and kills, does not show that there was a pressing necessity to take life ; nor does it show, that he could not have further retreated and avoided' the difficulty with .reasonable safety.

After conviction, and- judgment on the verdict, the defendant moved the court for a new trial. It would seem that at common law, after conviction for a felony, the defendant had no right as matter of law, to a new trial. — Chitty on Criminal Law,- § 654; 4 Black. Com. §361. The statute has made no provision for reviewing the ruling of the court, refusing a motion for a new trial in criminal cases, and we have often held that such action is not revisable, and in some cases even where the jury was allowed to separate. — Franklin’s case, 29 Ala, 14; Brister’s case, 26 Ala. 107; Cooper v. The State, 88 Ala. 107, Walker v. The State, 91 Ala. 76.

The fact that the defendant was not present in court when the motion for a new trial was heard and passed upon by the court is not error. A defendant has the right to he present during the entire trial and until after conviction and the sentence of the law' has been pronounced by the court.—State v. West, (La.) 13 So. Rep. 173.

Thore was no evidence to support the motion in regard to the juror Robert Bagley, and it was without merit as a ground in arrest or judgment,.

We find no error in the record.

Affirmed,