Cawley v. State , 133 Ala. 128 ( 1901 )

TYSON, J.

'Tlie recitals in the minute entry sufficiently show the presence of the defendant when the several motions to quash the several venires were ruled upon by the court. No exception is shown to have been reserved by defendant to the action of the court in quashing the venires on motion of the solicitor. As sustaining the correctness of ¡the' ruling of the court in this respect, see Wilkins v. The State, 112 Ala. 55.

In respect to the refusal of the court to quash the venire on defendant’s motion, only those grounds of the motion are insisted upon which go to the right of the court to discard the name of one W. I). Graves, who was drawn as a special juror and to order another to be forthwith summoned to supply his place. It was made to appear to the trial court, as shown by the record, that the name' of W. D. Graves was drawn from the box as a special juror and that in the list of jurors delivered to defendant, the name was written “W. D. Garves.” For the correction of this mistake the court had ample authority under the provisions of section 5007 of the Code, which it followed.

The other grounds of the motion, except the eighth, were not supported by the evidence, and, therefore, there was no error in overruling them. While the facts alleged in the eighth ground were proven, it can avail the defendant nothing, since there is no requirement that the list of jurors served on defendant shall designate the names of those jurors specially drawn and those drawn and summoned for the third week of the court, the names of 'all being upon the list served upon him. — Code, §§ 5004, 5273.

The record does not contain a copy of the drawing-made by witness Adams, which was before the court, showing the relative location and distances of the places named by him. Nor does the evidence in the record disclose affirmatively that Jones, upon leaving his home, did not go into the plantation road and thence ■along it to the point where his body was found. We cannot, therefore, know, as insisted bv appellant’s 'counsel, that he came to the place where he was killed by a different route and from an opposite direction. Since error must be affirmatively shown to overcome the presumption which must be indulged in favor of the correctness of the rulings of the trial court, and a® the question to which an objection was interposed was doubtless propounded by the solicitor for the purpose of showing that the defendant saw Jones, the deceased, as he went along the plantation road from his own house, and pursued him, it was entirely competent and relevant.

Two defenses were relied upon by defendant — one, self-defense, and the other insanity. There was testimony offered by the defendant tending to show, the weight of which was for the jury, that he had been previously to and was at the time of the killing of the deceased, afflicted with a mental disease produced solely by the information imparted to him of a supposed illicit relation between his niece and-the deceased. When insanity is pleaded, the subsequent a® well as previous acts and declarations of the defendant are admissible in evidence to show his true mental condition at the moment of the homicide. — McLean v. The State, 16 Ala. 672; 1 Mayfield’s Dig., 460, § 48.

The declarations of defendant to witness Huguley should not have been excluded.

In view of the testimony tending to establish ¡the defense of self-defense, the court committed an error in excluding the statement of defendant as a witness that deceased' was in the habit of carrying a pistol. — Wiley v. The State, 99 Ala. 146; Naugher v. The State, 116 Ala. 463.

Written charges b, f, and g, refused to defendant, cvere bad. They assumed as matter of law that the facts postulated created imminent peril ¡to life or limb, thus invading the province of the jury whose duty it was to determine whether the defendant was in imminent peril, actual or apparent. — Gilmore v. The State, 126 Ala. 21.

Charge c was condemned in Avery v. The State, 124 Ala. 20.

Charge d was properly refused upon the authority of Maxwell v. The State, 89 Ala. 150.

Charge e is so obviously defective no comment is necessary.

Charge h is in conflict with the principle often declared by this court; that emotional insanity as a defense “finds no justification or support in our jurisprudence.” — Walker v. The State, 91 Ala. 76; Parsons v. The State, 81 Ala. 577; Boswell v. The State, 63 Ala. 307.

For the errors pointed out the judgment must be reversed and the cause remanded.