Charleston v. State , 133 Ala. 118 ( 1901 )

TYSON, J.

The only exception reserved upon the trial was to the ruling of ¡the court sustaining a challenge for cause by the State of a juror on the ground that there was pending in the trial court an indictment against him, preferred within the last twelve months, for an assault with intent to murder.

•Subdivision 3 of section 5016 of the Criminal Code prescribes as one of the grounds of challenge for cause-of a juror, “that he has 'been indicted within the last twelve months for an offense of the same character as that Avitb which, the defendant is charged.’'’ This identical point was ruled upon in the case of Crockett v. The State, 38 Ala. 387, and the challenge sustained. It was there said: “An assault with intent to commit murder, is an offense of the same character as murder. They differ only in this, that in murder the purpose is accomplished. The will and the tendency of conduct are precisely the same in both cases. The identity of ‘character’ between the two offenses is as manifest, as between an assault and a battery; and the question here is the same with that which would arise, if one indicted for an assault had been challenged on the trial of one charged with a battery.”

There is no error in the record, and the judgment must be affirmed.