Smith v. State , 145 Ala. 17 ( 1906 )

DOWDELL, J.

When a capital case is set for trial on a day of the second or any subsequent week of the term of the court, the special jurors drawn, together, with the regular jurors drawn and summoned for such week, constitute the special venire from which the jury for the trial of the case is to be selected. Code 1896, § 5005. A copy of such special venire is what the statute requires to be served on the defendant. — Code 1896, § 5273. This was done in the present case, and the trial court properly overruled the motion to quash the special venire. The names of persons not regularly drawn and summoned as jurors for the second week of the court, but who are called to complete the organization of the panels on account of the absence of the regular jurors who had been drawn and summoned, should not be placed on the list or copy to be served on the defendant. .

The bill of exceptions recites: “After the court had commenced to impanel the jury for the trial of this cause, and three members of the jury had been selected and agreed on by the state and the defendant, the defendant moved tlie court to quash the venire upon the following ground: ‘For that the name of B. W. Cliff on, Jr., was drawn as a special juror for the trial of this case by the presiding judge, and that name was not on the copy of the venire served upon the defendant, but the name of B. W. Clifton was on the said copy of the venire served instead.’ ” If there had been any merit in the motion if it had been seasonably made, in the present instance, it came too late. — Williams v. State, 81 Ala. 1, 1 South. 179, 60 Am. Rep. 133. It was, however, at best, nothing more than a discrepancy in the name drawn and the name on the copy served on the defendant. Mistake in the name of the juror furnishes no cause for quashing the venire. — Code 1896, § 5007.- The court properly overruled the motion to quash.

A sufficient predicate was laid to admit evidence as to the dying declarations of the deceased, and the court committed no error in its ruling on the admission of such evidence.

There was no error in sustaining the objection of the state to the question asked the defendant when testifying at a witness in his own behalf: “Why and for what -purpose did you have the pistol with which you shot Ovid Rollins?” It is not permissible for a defendant to testify in his own behalf on direct examination as to his secret and uncommunicated purpose or intention.

On the principle laid down in Daughdrill v. State, 113 Ala. 7, 21 South. 378, and which has been followed in other cases since, charge 1, requested by the defendant, was properly refused.

Charge 2, refused to the defendant, failed to hypothesize freedom from fault on the part of the defendant it) bringing on the difficulty, and for this reason, if for no other, was properly refused.

There was evidence from which the jury were authorized to find the defendant guilty of murder in the second decree. which in fact they did, and the court very properly refused charge 3, requested by the defendant.

Charge 5, requested by the defendr V failed to hypothesize any present impending necessh-y to take the lilt1 of the deceased, and was otherwise faulty, and therefore properly refused. — Jackson v. State, 94 Ala. 90, 10 South. 509 ; Jackson v. State, 77 Ala. 18.

Charges 1 and 2, given at the request of the state, were each approved in Hornsby v. State, 94 Ala. 59, 10 South. 522.

Charge 3, given for the state, when referred to the evidence, was a correct statement of the law. If the defendant supposed it had a misleading tendency, because it failed in terms to hypothesize the evidence in the case, he might have counteracted any such possible tendency by asking an explanatory charge.

Charge 7, given for the state, was approved in Martin v. State, 119 Ala. 1, 25 South. 255.

We find no error in the record, and the judgment appealed from will he affirmed. '

Affirmed.

Weakley, C. J.,and Haralson and Denson, JJ., concur.