Barnes v. State , 134 Ala. 36 ( 1901 )

TYSON, J.

The defendant was convicted of mansloughter in the second degree, under an indictment charging murder in the first degree. Before entering upon t-lie trial a motion was made to quash the venire because the return of the sheriff thereon showed that one of the special jurors, whose name was on the list served upon defendant, was “not found.” This motion was overruled and properly so-. — Parsons v. The State, 81 Ala. 577; Webb v. The State, 100 Ala. 47. The cases of Thomas (94 Ala. 74) and Ryan (100 Ala. 108) relied upon by appellant have no application here. In those (‘ases names of persons were upon the list served upon defendant who had not been summoned as regular pc it jurors for the week in which the case was set for trial.

There was testimony affording an inference for the jury that the killing was malicious and unlawful; if. not malicious, that it was intentional; or if not intentional, that it was the result of the unlawful pointing of a loaded pistol by defendant at deceased. Charges S. and T. were, therefore, properly refused.

Section 4342 of Crim. Code makes it a. misdemeanor foir any person to present ati another any gun, pistol, or other fire arm, whether loaded or unloaded. Confessedly, if the defendant intentionally pointed the pistol at the deceased, without any intention whatever to take her life but by accident it was discharged producing her death, he would be guilty of the crime of which he was convicted. — Johnson v. The State, 94 Ala. 35; Sanders v. The State, 105 Ala. 5. The jury might have well believed that the death of deceased was unintentional or accidental, and yet have also believed that the fatal shot was fired by defendant in the. course, of the unlawful'act of presenting the, pistol at the person of the deceased. There was, therefore, no error in refusing written charge No. 2 requested by defendant.

Charge “Z” was bad for two reasons. . The first is, that it. was an attempt to reply to the argument made by the solicitor. Secondly, it asserted that there was no evidence in the case of an intentional pointing of the pistol at deceased by defendant.

Charge X has been so often condemned that it is needless to say more of it.

The bill of exceptions purports to contain all the. evidence introduced upon the trial. Charge 1 should have been, given oil account of tlie failure to prove the venue of the homicide. — Harvey v. The State, 125 Ala. 47; Brown v. The State, 100 Ala. 92; Randolph v. The State Ib. 139.

The remaining exception reserved by defendant, which, however, is not insisted upon, relates to the admission in evidence, of a conversation between defendant and ¡Springer overheard by the witness Allen who testified to it. There was clearly no error ini its admission.

For the error pointed out the judgment must be reversed.

Reversed and remanded