Skipper v. State , 144 Ala. 100 ( 1905 )

TYSON, J.

The motion to quash the venire because of a mistake in the name of Bachelor, one of the veniremen summoned to serve as a regular juror, was properly overruled. So too ivas the action of the court in discarding the name of Besóle, which ivas on the list of jurors delivered to defendant, and ordering the sheriff to summon a legally qualified person to supply the place, proper. — Criminal Code, §5007.

The evidence beyond adverse inference established that defendant willingly entered into the difficulty. Indeed, his testimony shows that he invited it and encouraged it. His going to the place where deceased was, armed with a shotgun, in view of their deadly hostility towards each other was an act calculated to bring on the difficulty which ensued between them. — Reese v. State, 135 Ala. 13. And this fact, coupled with his reply to the deceased, makes it clear beyond adverse inference that he was willing to engage in the deadly combat. This being true he was not entitled to invoice the defense of self defense. Evidence of threats by deceased against him, therefore, was inadmissible. — Ragsdale v. State, 134 Ala. 24. For the same reason, if for no other, written charges 3, 4, 5, 8 and 9 were properly refused.

Charge 1 was clearly bad. — Williams v. State, 128 Ala. 17. Charge 2 was an argument and otherwise bad.. Defendant’s guilt in no wise depended on whether Fair, who was jointly indicted with him, participated in the act of killing. Charges 6, 7 and 10 were, therefore, properly refused.

Charge 11 was the general affirmative charge with hypothesis. This one, of course, could not have been given. On the contrary, a similar charge, if requested by the State, might well have been given.

Affirmed.

McClellan, C. J., Simpson and Anderson, JJ., concurring.