Jimmerson v. State , 133 Ala. 18 ( 1901 )

HARALSON, J.

1. There was no error in overruling-the motion to quash the venire for the trial of defendant, on-the grounds therein stated. It. in-ay' be admitted, that the -slips -containing the names of the persons composing the three venires which were quashed on motion of - defendant at the former term of the court, — two-of them for the, trial of this defendant, and one-of them for the trial of another defendant in a capital -case, — 'should not have been restored to the jury box, -after said venires were quashed, but should have been destroyed. -It -is unnecessary for us now to determine .that question. However that may be, the fact that the slips containing these names, were returned to the jury box, did not of itself, as contended by defendant, so taint- and corrupt the box, “that it ceased to be a jury box,- and no legal jury could [thereafter] be drawn therefrom.” The only ground upon which such a contention can be rested is, that these slips when once drawn from the box could not be legally restored thereto and mingled with the other slips remaining, so -as that they could not be thereafter identified, in drawing other venires from the box, thereby rendering it possible for the same persons- to be drawn and placed on an indefinite number of venires. If the judge instead -of restoring the slips in the manner alleged,' had placed them in a sealed envelope, and thus sealed up had placed them in the box, the liability to have repeated venires composed of some of the same persons, might have been thus' obviated. In this case, ¡the slips were not placed in sealed envelopes, nor tied together; but a list of the names on each venire was carefully preserved, and these lists are copied in the transcript as exhibits A. B. and 0. to this motion. Furthermore, it was admitted 'by defendant, on the trial of the motion, “that none of the persons drawn on the previous venires, marked A. B. and C. were drawn to try this case,” at the term at which it was tried. Under this state of facts, it affirmatively appears, that defendant by the alleged wrongful action of the court in restoring said names to the jury box was not thereby deprived of any legal right, or suffered any special injury. — Wilkins v. State, 112 Ala. 55; Code, §§ 4997, 4333.

2. The evidence sought to be introduced by defendant and rejected by the court, made the basis of alleged errors as assigned, from 3 to 11, inclusive, was illegal and entirely irrelevant to the issues in the case. These occurrences, as appear, going into the particulars of a former difficulty and objectionable on that account, were all of a date, more than two months prior to this homicide;- they purport to have occurred at the house of deceased and at defendant’s own house in his absence, and of which, for more than the length of time specified, defendant was fully informed. They had no immediate connection with the fatal -attack by defendant on deceased, and of themselves could neither justify nor palliate defendant’s act in killing him, nor shed any legitimate light on the transaction. — Rogers v. State, 117 Ala. 9; Ragland v. State, 125 Ala. 12.

3. On the cross-examination of defendant as a witness, he wa-s asked by the solicitor, if he had not heard that deceased has about to move from the neighborhood, which question was objected to, because the evidence sought was immaterial and irrelevant, — and not because it was hearsay. Its only possible relevancy or materiality rested on the idea, that- defendant bearing that deceased was about to -move -away, desired to kill him before he left for having defiled defendant’s wife; or, as tending' to show that deceased did not intend to execute his threats against defendant, and that th,ey were idle talk, and for such purposes the evidence was competent.

4. The State was allowed to prove against the objection of defendant, that the general character of the deceased ivas good, and also, that his. character for peace and quiet was good. The objection interposed was, that the character of deceased had not been assailed by defendant. The objection was well taken, and the evidence should not have been admitted. Not a word of evidence had been introduced by defendant, in-respect of the general character of deceased, whether good or bad, nor, as to his character for turbulence, violence or revengefulness. The admission of the evidence is sought to be justified, on the ground that there was evidence by defendant tending to show that deceased had, prior to his killing, threatened to kill defendant, and that he had had illicit intercourse with defendant’s wife. These did not authorize proof, in rebuttal, of his general character, noir as distinguishable therefrom, of his character for peace and quiet. They were not introduced and were not admissible to prove general reputation,. and, of themselves, did not show deceased’s character for peace and quiet to be bad. He might have been guilty of both, and yet not have Jaeen a turbulent, violent or revengeful man. — Ben v. State, 37 Ala. 103; Eiland v. State, 52 Ala. 323; Hussey v. State, 87 Ala. 122.

5. The defendant was allowed to prove that he had sworn out a warrant -against deceased, and he was under bond to appear and answer any charge that might be preferred against him by the grand jury. In connection Avith this, he offered to prove that he had sworn out the Avarrant “under the -adAdce of counsel,” but on objection that- this statement a-s to the advice of counsel Avas “immaterial, irrelevant, illegal and. incompetent,” the court excluded it, and in this it did not err.

6. There was no error in the charge given -for the State. Tiie Adces of charges from 1 to 3, Inclusive, refused for defendant are manifest; and require no discussion. ■ ..

Refused charge 4 was faulty. Mere' “apprehension of imminent danger caused by acts or demonstrations of the deceased, or by threats or words coupled with his acts or declarations,” as stated in the charge, were not sufficient to justify a deadly assault upon deceased, as thé charge implies. ■ Moreover, the chárge ignores the doctrine' of escape.

The 5th' charge, to say no inore of it, fails to hypothesize the reasonable belief of defendant i that he was in imminent peril.

The 6th is subject to the1 same vice as the 5th. It is besides argumentative and tends to mislead, and ignores the doctrine of’retreat.

- From what has been said as to the proof of the good character of deceased, it will appear that charges 7 and 8 requested by defendant and refused, should have been given. '

For the errors indicated the judgment of conviction is reversed and the cause remanded. •

Reversed and remanded.