Hurd v. State , 116 Ala. 440 ( 1897 )

COLEMAN, J.

The defendant was convicted of murder, and sentenced to the penitentiary for life. The bill of exceptions does not purport to set out all the evidence. The record being in this condition, the presumption is, that the evidence justified the charges to the jury given by the court, and its refusal to charge as requested ; none of the rulings of the court as to instructions being of such a character but that they might have been justified by some condition of the evidence.

The motion in arrest of judgment was properly overruled. The orders of the court, preliminary to the trial» seem to be technically correct. The record affirmatively •shows, that the defendant was present in court when the day for his trial was appointed, and when the order was made, specifying the number of jurors to be summoned in addition to the regular panel. The law does not require that he should be personally present, at the time of the drawing of the special venire from the. jury box. The per curiam opinion in the case of Hames v. The State, 113 Ala. 674, merely stated the condition of the record, and adjudged that it was insufficient to sustain the judgment of the court. The authorities cited in that case, in support of the adjudication, go no further than to hold, that it must affirmatively appear from the record that the defendant was present in court when the order was made appointing a day for the trial, ■and for the number of special jurors to be summoned. Spicer v. The State, 69 Ala. 159; Sylvester v. The State, 71 Ala. 17. The question mow under consideration was considered and settled in the case of Washington v. The State, 81 Ala. 35.

Affirmed.