Laws v. State , 1905 Ala. LEXIS 93 ( 1905 )

ANDERSON, J.

The record-shows that the special venire in this case was drawn by “The judge of this court’’ and while the statute required it to be done by the “Presiding judge,” we think that the presiding judge and the judge of the court were but one and the saane. The point decided in the case of Scott v. State, 37 So. Rep. 366, had no application, as it was held in that case that the court and the presiding judge did not mean the same.

It is true that there are two judges of the criminal court of Jefferson county, but we must presume that the judge of the court as recited in the. minute entry was the judge presiding at the time the venire was drawn and was the judge that dreAv the same. We cannot accept the contention of counsel that the statute contemplates that the venire must be drawn by the judge who presides at the trial of the case. It means that the venire must be drawn by the judge presiding when, the same is drawn and Ave think the “Judge of the court” means the judge presiding over the court Avhen the venire AAras drawn. We do not think that the statute requires the venire to be draAvn by the judge aaJio tries the case. Under the Constitution circuit judges can hold courts- for each other. One maAr preside the week the case is set and the venire is drawn and another may preside the next week and try the case, and we cannot believe that the statute prohibits such an exchange upon the theory that the A’enire must haAW been drawn by the judge presiding at the trial. On the other hand, capital cases- may be set cioAvn for trial by one of the judges of the criminal court of Jefferson county, aat1ao draws the venires, and he may get sick, or some other cause may prevent him from presiding at the trials, and we see no good reason why the other judge cannot try the cases, in so much that the venires were drawn by the judge who was at the time presiding and who was at the time the judge of the court in which the proceedings were had.

The defendant cannot complain of the recital of the judgment entry, that the jury was organized and empaneled by the court instead of the judge, as the law requires it to be done by the court. — Section 3 of Acts, 1891-2, page 641.

While the bill of exceptions recites that the defendant was not represented by counsel upon his arraignment and when he plead not guilty, it does show that the case had been set down on two- previous occasions for trial and that he had the benefit of counsel each time. We think the plea in abatement came too late and was properly stricken. — Verberg v. State, 137 Ala. 73; Hubbard v. State, 72 Ala. 164. Besides, the record recites that the defendant’s attorney was present at the arraignment and when he plead not guilty.

Voluntary drunkenness excuses no man for the commission of a crime which does not involve a specific intent, or malice, regardless of the nature and character of his mental condition, as a result therefrom. The most that can be claimed on such subject is that the fact of excessive drunkenness is sometimes admissible to reduce the grade of the crime, when the question of intent, malice, or premeditation is involved. — Brown v. State, 38 So. Rep. 268, and cases there cited. As manslaughter does not involve a specific intent, drunkenness is no defense, and all the charges predicating the defendant’s acquittal upon his drunken condition were properly refused.

The defendant cannot complain in the case at bar of the refusal of his charges with reference to drunkenness, as he was acquitted of murder and drunkenness was no defense to manslaughter. — Jarvis v. State, 138 Ala. 17; Winter v. State, 123 Ala. 1 ;Evans v. State, 109 Ala. 11; Fallin v. State, 83 Ala. 5.

Charge 1 was properly refused. The deceased may have been striking at defendant with a knife and he may have shot to save his own life, and still not have acted in self-defense, and the charge ignores the question of who provoked the difficulty.

Charge 3 was properly refused. It requires an acquittal whether the defendant acted in self-defense or not, and fails to define what constitutes self-defense.

There was no merit in any of the numerous objections to the evidence.

The judgment of the criminal court is affirmed.

McClellan, C. J., Dowdell and Denson, JJ., concurring.