Scott v. State , 133 Ala. 112 ( 1901 )

HARALSON, J.

1. There was no error in the court, of its own motion, excluding the juror, Steve Smith, from sitting on the jury, and in ordering him to stand aside. He showed on his examination, touching Ms qualifications, that he was on theJ grand jury when an indictment for an assault with intent to murder deceased, was found against the defendant for the same act with which he was now charged with murder, and was on defendant’s bail bond for his appearance in this case.

It is well settled, that the enumerated causes for the challenge in the 'Code, are not exclusive of all others, and of the discretionary power of the court to set aside any one summoned as a juror, who, for any cause, appears to be unfit to serve as such. The rule is well stated by this court to be, that “it is the duty of the court, when it shall appear satisfactorily that any person called as a juror has not the requisite qualifications of integrity, impartiality, or intelligence, at any time before he has been elected by the State and defendant, to reject him. The State certainly has no interest, and the defendant has no right to introduce into the jury box unfit persons. It is the duty of the court to guard against their introduction.” — Smith v. State, 55 Ala. 1, 10; State v. Marshall, 8 Ala. 302; Long v. State, 86 Ala. 36, 40. So it has been held that a person who, as in this case, is bail for the defendant’s appearance to answer the charge against him, is not competent to serve as a juror on his trial. — Breazleton v. State, 66 Ala. 97.

The case of Bell v. State, 115 Ala. 25, relied on by defendant’s counsel, is not opposed to the principle above announced. There, the juror was not an unfit person, for any reason appearing, but was merely a witness in ithe case for tlie defendant, which fact did not disqualify or render him incompetent, to serve. It subjected him to challenge, under the statute, by either party, but for which cause, the court could not, of its own motion, set him aside.

The other cases referred to by counsel are alike inapplicable.

2. There-was nothing of which the defendant can complain, that the court with the jury, the defendant, officers of court and attorneys, repaired from the courtroom in the second story of the court-house, where the trial was being conducted, to the sheriff’s office on the first floor of the court-house, for the purpose of examining a witness for the State, made known ¡fio the court to be suffering from rheumatism, and who could not be brought into the-" court-room without considerable pain to him. This fact was testified to by a physician. The statute, — Code, § 898, — provides, that the circuit courts of the several counties shall be held at the couih-houses thereof. The sheriff’s office was at the court-house of the county, and there is nothing in the statute which prevents the court being held temporarily, or even during the term, in the sheriff’s office. The action of the court under the circumstances^ shown, was commendable and not subject to criticism or objection from any point of view.

3. Charge A. requested by defendant and refused has been too often condemned by us to require further consideration. — Howard v. State, 110 Ala. 94; McQueen v. State, 103 Ala. 13; Johnson v. State, 102 Ala. 3.

4. Charge 8 fails to set forth the constituents of self-defense, and its refusal may be justified on that account. Miller v. State, 107 Ala. 42; Roden v. State, 97 Ala. 55. Moreover, it was erroneous in that it postulates in effect, that no act of defendant, even if it had the effect to bring on the difficulty, should be considered against him, unless it be shown, “that he intended to bring it on with a felonious intent.” Being wholly free from fault in bringing about a difficulty, cannot be made to consist in defendant’s felonious intention. Still further, it ignores the question of reasonable mode of retreat or escape. — Linehan v. State, 113 Ala. 70.

5. Good character of the defendant may be considered in connection with all the other evidence in the case, and when thus considered, may generate a reasonable doubt of his guilt, when the other evidence without it might leave no such doubt; but it is improper to charge the jury that good character alone, without its consideration in connection with the other evidence in the case, may be considered to generate a reasonable doubt of guilt. — Miller v. State, 107 Ala. 59; Thornton v. State, 113 Ala. 44. Charge W. asked by defendant, while it postulated that the jury might consider defendant’s good character in connection with the other evidence in the case, postulates that it, the good character, and not good character considered in connection with each other, might generate a reasonable doubt of guilt. When properly construed, the charge means that good character alone may generate a doubt of guilt, and was on this account erroneous. — Johnson v. State, 102 Ala. 2.

6. Charge K. was properly refused. It fails to set out the constituents of self-defense; and it contained the instruction, that if defendant renewed the difficulty after deceased abandoned it’ as the evidence shows was the case, yet, if defendant did not realize that deceased had retired from the difficulty, then they should acquit. If it was a fact that deceased abandoned the difficulty, as Hie charge assumes he did, the defendant could not set up his want of realizing that he had done so, as an excuse to commence it again. He may have been greatly at fault in not having recognized the fact of abandonment of it by deceased. Renewal of it by defendant, if deceased abandoned the fight, as the evidence tends to show he did, and the charge admits, made him the aggressor ab initio, as to what followed. — Hughes v. State, 117 Ala. 26; Stillwell v. State, 107 Ala. 16.

7. We have examined the several charges given at the request of the State, and fail to find any reversible error • in them.

There were many exceptions to the introduction and exclusion of evidence, which appear to be without merit.

Finding no reversible error in the record, let the judgment of the court below be affirmed.