Bell v. State , 115 Ala. 25 ( 1896 )

HEAD, J.

There is no merit in the motion of the Attorney-General to dismiss the appeal on the ground that the court is without jurisdiction for thé reason that it does not appear by the record that W. W. Haralson, Esq., who presided as special judge upon the trial of the cause, was authorized to sit as a special judge of said court. For one of the causes specified in the statute, (Acts, 1894-95, p. 1135), Mr. Haralson was appointed and commissioned by the Governor as special judge.to hold the fall term 1896 of the circuit court of Marshall county, in pursuance of the said statute. The judge appointed under that act is as much an officer of this State during the time and for the purposes for which he was appointed, as the regular incumbent,- and we will take the same judicial notice of his authority.

The defendant pleaded in abatement of the indictment,', under which he was tried, that a former indictment charging him with the same offense, upon which he had been previously arraigned, and to which he had pleaded not guilty, was still pending in the court against him, at the time he was arraigned and called upon to plead in this cause. The court properly sustained the demurrer to this plea.—People v. Fisher, 14 Wend. 9 ; 28 Am. Dec. 501; Hawk, P. C. b. 2, c. 34, § 1.

The venire in a capital case can not properly be quashed because of mistakes in the names of the persons summoned as jurors, or because of discrepancies in their names between it and the copy served on the prisoner.— Code of 1886, § 4322 ; Roberts v. State, 68 Ala. 156 ; Hubbard v. State, 72 Ala. 164.

The record of the order of the court for the summoning of the jury and the service of a copy of the venii*e .and indictment appears to be regular.

It has never been the practice, and the law does not require, that the copy of the indictment served on the prisoner should contain a copy of the organization of the grand jury. The purpose of the statute is to give the prisoner an opportunity to be informed of the particular charge brought against him, and this is fully.accomplished by serving him with a copy of the indictment, as filed.

The proper interpretation of the bill of exceptions is that J. F. Kennamer, who was drawn and called as a júror, was directed to stand aside upon the invitation of the defendant, and the latter can not complain of it. It furnished no valid objection to further proceeding with the organization of the jury.

It is cause of challenge of a juror by a party that the juror is a witness for the other party. — Code of 1886, § 4331. The trial court, against the objection and exception of the defendant, ordered R. C. Harris, who was called as a juror,' to stand aside, for the reason that Harris had been summoned as a witness for the defendánt. This action was of the court’s own motion, when it was disclosed by the examination of Harris, as to his qualifications, that he had been summoned as a witness for the defendant. The juror was not’challenged for the cause by either party. We think the court erred in this action. The juror was not disqualified,'.or incompetent to serve. He was subject only to challenge for the statutory cause, to be exercised at the election of a party; first of the State, and, if waived by it, then of the defendant. It was a cause of challenge which the parties could waive, and if waived, the court had no authority, of its own motion, to set the juror aside.

When the court set aside the name of J. P. Kennamer, at the instance of the defendant, as hereinbefore stated) it did not order another person to be summoned to supply his place, as the statute provides shall be done. No motion was made by either party that the same should be done, but the organization of the jury proceeded without objection, and two other names were drawn from the box. The solicitor then suggested to the court that the sheriff should be directed to summon a juror to supply the place of Kennamer. The sheriff summoned one John Lewis, as a juror, and proceeded to write his name upon a slip of paper to put in the box, and to this the defendant objected, because two names had been drawn from the box after said Kennamer had been discharged, and because St. John’s and Turner’s and Kennamer’s names (as to which there were mistakes in initials and spelling) had been placed in the box, and because they were not discarded and others summoned to supply their places before • proceeding to draw the jury. The court thereupon directed the sheriff not to put John Lewis’ name in the" box. ' The defendant then objected, on the above grounds, to proceeding with the selection of the jury; and thereafter, as each juror was called, renewed the objection. We' are of opinion, and so hold, that these objections were waived by the defendant, by reason of his failure to make them until after the organization of the jury had proceeded by the drawing of two persons from the box. . ■ ■ . .

There was no error in permitting.the. witness, Childress, to testify that when he first saw defendant, in the spring of 1895, he, the defendant, was in the custody of an officer. The evidence had some bearing on the subject of flight, of which there was other evidence.

The defendant requested a great many different charges, all of which we have examined. Those numbered 1, 2, 3, 4, 5, 6, 7, 8, 9, 12, 13, 14, 16, 18, 19, 22, 23, 24, 25, 26, 27, 28, 29, are so obviously faulty, upon principles so often laid down by this court, that we deem it unnecessary to comment upon them.

We think charges 10 and 11 requested by defendant ought to have been given. The effect of these charges is, that the want of more evidence in favor of innocence than there is in favor of guilt, does not necessarily determine that the jury may not have a reasonable doubt of guilt. If the evidence, whatsoever may be its quantum tending to show guilt or innocence, is such as to leave the jury in reasonable doubt of guilt, the defendant is entitled to an acquittal, and that doubt may exist, notwithstanding the preponderance of the evidence is in favor of guilt.

Charge 15, though seemingly intended to be of the same order, is so drawn as likely to mislead the jury, and was properly refused.

Charge 20 does not sufficiently hypothesize the defendant’s freedom from fault in bringing on the difficulty. If he made the declaration testified to by the witness, Jim Tom Childress, as the deceased and others approached defendant, it was a circumstance to be considered by the jury in determining whether or not defendant was entirely free from fault. The charge ignores this feature of the evidence.

Charge 21 does not properly state the duty of retreat. Its effect is, that the defendant was not required to retreat, if the deceased was in such proximity to him as to render it hazardous to do so. The law is that to excuse the failure to retreat, the circumstances must be 'such as that the defendant’s peril would have been increased thereby beyond that to which he would have been subjected had he stood and defended himself against his assailant; or were such as to impress the mind'of a reasonable man that the peril would have been thereby increased, and that he was so impressed. The request for this instruction was evidently prompted by the.case of DeArman v. State, 71 Ala. 351. Upon examination of that case it will be seen that the principie we declared was, that if the accused was in such proximity to the deceased as to render it hazardous to attempt flight, then (the other essentials of self-defense being present) the law would not require the accused to endanger Ms safety by attempted flight. This is in harmony with the rule above declared, and which is supported .by the following array of authorities : DeArman v. State, 77 Ala. 10; Henderson v. State, 77 Ala. 77; Finch v. State, 81 Ala. 41; McKee v. State, 82 Ala. 32; Carter v. State, 82 Ala. 13; Williams v. State, 83 Ala. 16; Morrison v. State, 84 Ala. 405; Cleveland v. State, 86 Ala. 1; Blackburn v. State, 86 Ala. 595 ; Poe v. State, 87 Ala. 65; Shell v. State, 88 Ala. 14; Hammil v. State, 90 Ala. 577; Davis v. State, 92 Ala. 20 ; Perry v. State, 94 Ala. 26 ; Roden v. State, 97 Ala. 54; McDaniel v. State, 97 Ala. 14; Holmes v. State. 100 Ala. 80; Gibson v. State, 89 Ala. 121.

For the errors mentioned, the judgment is reversed, and the cause remanded.

Reversed and remanded.