Parris v. State , 175 Ala. 1 ( 1911 )

SIMPSON, J.

The appellant was convicted of the crime of murder in the second degree.

There was no error in the action of the court in sustaining the motion to strike the first plea in abatement. Said plea is unintelligible in that it states that the judge “did not draw tlie grand jury * *. * before the last term of the present term of the circuit court ■adjourned.”

In addition, section 15 of the jury act 1909 (page ■310) expressly provides for drawing juries at times ■subsequent to the adjournment of the previous term, and section 29 (page 317) declares expressly that the provisions in regard to drawing, etc., of jurors are merely directory and that “no objection can be taken to any venire of jurors except for fraud in drawing or .summoning the jurors.”

The plea does not raise the point that the jury was not drawn “in the presence of the officers designated by law.” — Code, § 7572.

There was no error in overruling the motion to quash the indictment. The fact that the name of M. E. Reeves appeared in the indorsement under the words, “foreman of grand jury,” in place of over said words, did not affect the validity of his indorsement. The record shows that said M. E. Reeves had been by the court appointed foreman of the grand jury.

The fact that two persons summoned as regular jurors were excused from serving on the regular panel did not render the placing of their names upon the special venire illegal.

• There was no error in excluding the testimony as to the deceased’s shooting craps in the house of witness 30 minutes before the shooting occurred, the testimony not being relevant and not part of the res gestae.

The defendant having been placed" upon the stand, and having testified as a witness, was subject to impeachment by proof of bad character, just as any other witness Avould be (Mitchell v. State, 148 Ala. 618, 42 South. 1014), consequently there was no error in allowing the witness to testify that defendant’s general character was bad.

There was no error in overruling the motion to exclude the statement by the witness Tidwell that Bud Parris and John Parris were drinking shortly after the killing, as they had both detailed circumstances in regard to the killing, and the facts mentioned were proper to be considered by the jury in determining whether said witnesses were in a condition to remember accurately what transpired.

Charges A, B, and C, given on request of the state, were properly given. — Pitts v. State, 140 Ala. 70, 77, 88, 37 South. 101; Jones v. State, 79 Ala. 23, 25; Mose v. State, 36 Ala. 211, 231; Owens v. State, 52 Ala. 400, 405.

Charge 27, requested by the defendant, was properly refused as it ignores the questions as to whether the defendant was without fault in bringing on the difficulty, ■also as to whether the defendant’s mind was impressed that he was in imminent danger, also as to whether he ■could retreat without increasing his danger.

Charge 30, requested by. the defendant, was properly refused. It singled out a part of the evidence, and was ■otherwise faulty.

Charge 31 is elliptical and argumentative, and was properly refused.

Charge 33 is unintelligible and elliptical, besides being argumentative, and was properly refused.

Charge 86 ignored the duty to retreat and also the ■question as to whether the defendant was, in fact, impressed that he was in imminent danger, and was properly refused.

Charge 38 is argumentative, and was properly refused.

The judgment of the court, is affirmed.

Affirmed.

All the Justices concur, save Dowdell, C. J., not sitting.