Smith v. State , 165 Ala. 50 ( 1910 )

EVANS, J.-

— The defendant was indicted, at the fall term, 1909, of the circuit court of Dé Kalb county, for the offense of murder in the first degree. On the 23d day of August, 1909, the defendant was duly arraigned according to law, and pleaded “not guilty.” Monday, the 30th day of August, 1909, was regularly set as the day for the trial of defendant, and 30 special jurors were drawn in all respects as the law directs for the trial of the case. The orders of the court were in all respects regular and in accordance with the law. On the day set for the trial, the defendant objected to being put on trial, because neither he, nor his counsel, had been served with a copy of the indictment'as the law directs; that the names of the witnesses for the state which appear upon the indictment were, not the same as those that appear upon the copy served on defendant.

It seems that it would need no discussion to show that the names of the witnesses for the state, written upon the back of the indictment, constitute no part of the indictment; and there is no law requiring that a list of these be served upon defendant or counsel appearing for him. These names are written upon -the indictment for the benefit of the state, in order that the clerk of the court may be sure to summon the right witnesses for the state in each case, and not for the purpose of putting the defendant on notice of what witnesses the state will use.

The defendant then filed a written motion to quash the venire. Two questions of law are raised by this motion, together with the evidence and admissions of the state going to support it. The first is that in the copy of the venire served upon the defendant the name of W. A. Gilbert, who was regularly drawn as a juror* for the third week of court, and whose name should have been upon the venire served upon defendant, was not on the venire; but, instead thereof, the name of W. A. Gilbreath wa.s written thereon. The second question of law is that several of the jurors drawn for the third week of court, the week this case was set for trial, were not summoned by the sheriff, because some were dead and others could not be found in the county.

The first question, raised by the motion to quash the venire, has been several times ruled on by this court, and always adversely to the contention of appellant. In the case of Bell v. State, 115 Ala. 27, 22 South. 529, the court say, Justice Head writing the opinion: “The venire in a capital case cannot properly be quashed becausé of mistakes in the names of the persons summoned as jurors, or because of discrepancies in their names between it and the copy served on the prisoner.” — Code 1907, § 7267; Roberts v. State, 68 Ala. 156; Hubbard v. State, 72 Ala. 164.

The second question is equally without merit. The last clause of section 7256 of Code of 1907 is as follows: “And no objection can be taken to any venire facias for a. petit jury, except for fraud in the drawing or summoning thq jurors.” As no question of fraud is alleged or proven with reference to the summoning of the jury for the third week of the term of court, the motion to quash on the ground that the sheriff failed to summon ■some of the jurors drawn for said week ivas properly-overruled. Under the proof he could not have summoned them, as some were dead and the others were not found in the county.

There was no error in the court’s overruling the objection of defendant to the testimony of Dr. C. W. Wright. It was first shown that he had been a practicing physician and surgeon for 20 years; that he examined the body of the deceased shortly after his death— an hour or two. Among other things, he testified that in his opinion the death of the deceased was caused by the pistol ball. “The defendant objected to opinion of witness.” A physician may testify as an expert, and may give his opinion as to whether a given wound was fatal or not. — Mayfield’s Dig. vol. 5, p. 405, § 726, and authorities there cited; Bishop on Criminal Procedure, Evidence, Pleading & Practice (3d Ed.) vol. 2, § 631, “Wounds.”

The defendant objected to the evidence of Sheriff Downs to the effect that while defendant was a prisoner in jail, the jail was broken and defendant escaped. The bill of exceptions states that “defendant objects to all testimony as to the jail breaking.” The evidence was properly admitted, and the objection properly overruled. — Elmore v. State, 98 Ala. 12, 13 South. 427. His motive for escape from jail was a question for the jury to pass upon whether it was consciousness of guilt or something else.

Charges 1, 2, and 3, given at the request of the state, have been so often approved by this court that it is useless to discuss them or cite authority. Besides, the principles enunciated in each are elementary, and applicable to all criminal cases.

All charges asked by defendant and refused by the court were properly refused. Charge 8 is argumentative, and the last sentence states no principle of law nor hypothesis of fact. The law does not enter into any such speculations.

Charge 18 was defective because, although all it hypothesizes might be true, and still the defendant be guilty of an offense against the law; and the degree of that offense would depend upon the degree of recklessness.

Charge 16 is argumentative in the first half and states no proposition, of law, nor does it hypothesize any matters of fact- In the latter half it is .but a repetition of what was given in several charges asked by defendant.

Charge 22 is a substantial reproduction of charge 20, given at request of defendant. It was, therefore, properly refused.

Charge 25 was properly refused, as an accidental discharge might have been caused by such recklessness or carelessness as would constitute guilt, if it resulted iti the injury or death of any one.

Charge 27 requires an acquittal if any one juror has a reasonable doubt of defendant’s guilt. It was, therefore, properly refused.

Charge 30 in effect states that, if the jury does not find the defendant guilty of murder in the first degree, then they must acquit him. This was palpably incorrect. Under the indictment and the evidence, the jury could find him guilty of any degree of homicide.

Charge 31 was the affirmative charge for the defendant, and, under the evidence, was clearly wrong. The evidence showed without dispute that defendant killed deceased by shooting him with a pistol, and fully supported the theory of his guilt.

Charge 33 was an argument, and was properly refused.

Motion for a new trial in criminal cases is a matter to be determined by the trial court, and is entirely within its discretion. — Burrage v. State, 113 Ala. 108, 21 South. 213; Cooper v. State, 88 Ala. 107, 7 South. 47.

There was no evidence adduced to support the charge of an illegal separation of the jury, on the motion to set aside the verdict. This court cannot, therefore, consider that ground s.et out in the motion.

There being no error, the judgment of the lower court is affirmed.

Affirmed.

Dowdell, C. J., and McClellan and Sayre, JJ., concur.