Vincenzo v. State , 1 Ala. App. 62 ( 1911 )

PEE CUEIAM.

-The appellants were indicted for murder, and found guilty of murder in the second degree. A motion was made by the defendant to quash the venire, because in the original venire there appeared the names of W. Frank Glidewell, E. Monroe Goode, J. Thomas Eeeves, and S. Manly Cox as drawn from the box, when they should have been Frank W. Glidewell, Monroe E. Goode, Thomas J. Eeeves, and Manly S. Cox. It will be noticed that the only difference is that the Christian names were transposed. It was also claimed in said motion that the name of Joe Sylvester Bukacea was served upon the defendant as one of the names composing the venire, and the subpoena was served on Joe Sylvester Bukacek, there being no such person in the county as Joe Sylvester Bukacea; also that the clerk of the jury commission was incompetent, because, at the time of his appointment, he held the other office of notary public and ex officio justice of the peace.

There was no merit in this motion. Section 7267, Code 1907; Patterson v. State, 156 Ala. 62, 65, 47 South. 52; Walker v. State, 153 Ala. 31, 33, 45 South. 640; Hammond v. State, 147 Ala. 79, 86, 41 South. 761, and cases cited. The official acts of all de facto officers are validated by section 1473 of the Code of 1907, and, besides, there was no proof as to the clerk of the jury commission holding any other office. There was no error in overruling said motion to quash.

The predicate for the admission of the dying declaration was sufficient, showing that at the time the declaration was made the deceased was fully conscious of the fact that he was going to die from the wound.

Charge No. 1 was abstract, and properly refused. There was no evidence tending to show that the killing was accidental. It cannot be said that, because it was dark when a shot was fired, it was accidental.

Charge No. 2 was properly refused. It required the acquittal of all of the defendants, on the predicate that one of them was not connected with the killing.

Charge No. 3 was properly refused, as it pretermitted reference to the lesser grades of homicide, and also invaded the province of the jury as to whether the evidence showed that Eads was “so killed with a gun or pistol.” It could not be said that there was no evidence that he was killed with malice aforethought. He was killed by some one, who, after attempting to rob him, deliberately fired upon him with a deadly weapon.

There was no error in the refusal to give the general charge in favor of the defendants, and the motion for a new trial is not revisable.

The judgment of the court is affirmed.

Affirmed.

Note. — The above opinion was prepared by Mr. Justice Simpson of the Supreme Court before the transfer of the case to this court and is adopted by this court.