Mizell v. State

ANDERSON, J.

— Section 15 of the present jury law (Acts 1909 [Sp-. Sess.] p. 310), among other things, provides that if for any reason “the judge of the court fails to draw the juries as required in this section before the twenty days above mentioned the clerk of such court shall notify the judge of any court of record, except probate judges, residing nearest to the place of holding the court, and it shall be his duty upon receiving such notification to immediately draw the juries for the next term of the court in the manner herein* provided.” The defendant’s pleas 1 and 2 question the action of Judge Campbell in drawing the jury because it does not appear that the clerk notified him in writing that the judge of the circuit court had failed to draw the juries. The statute does not require that the judge of the court of record be notified in writing of the default of the judge of the trial court, and we think that the demurrers to said pleas 1 and 2 were properly sustained.

The third plea was also without merit, and the demurrer thereto was properly sustained. While it charged that the juries were not drawn by the judge of the circuit court or in’ his presence, it does not charge that they were not drawn by Judge Campbell or some other officer authorized by law, and section 23 of the jury law (Acts 1909 [Sp. Sess.]) provides: “That no objection to an indictment on any ground going to the formation of the grand jury which found the same can be taken to the indictment, except by plea in abatement to the indictment; and no objection can be taken to an indictment by plea in abatement except upon the ground that the grand jurors who found the indictment were not drawn by the officer designated by law to draw the same.”

Section 7787 of the Code of 1907 authorizes, the presiding judge, when the solicitor is absent, or for other reasons there enumerated, to appoint a competent attorney to act in his place. If the regular solicitor was absent, regardless of the reason or cause, the presiding judge had the authority to appoint the special solicitor, and whether the regular solicitor was properly absent or not. In justice, however, to the regular solicitor, we may add that it was as much his duty to be at the special term being then held in his circuit as the term in question. The defendant’s plea 5 in abatement was subject to the state’s demurrer.

The motion to quash the venire was properly overruled. Section 29 of the jury law, among other things says: “And no objection can be taken to any venire of jurors except for fraud in drawing or summoning the jurors.” See, also, last part of section 32.

The personal experience of the witness, Faulk, with the deceased should not have been given by him when asked about the general character of the deceased for peace and quiet. Moreover, his answer that the deceased waylaid him was not responsive to the question asked him on cross-examination. Nor was the veracity of the deceased at stake, and it was immaterial to the issues involved as to whether or not Faulk had heard people say, of the other faction, that they would go down on the stand and swear that they would not believe him. The trial court did not err in excluding this gratuitous statement of the witness Faulk. The deceased may have had a bad character for truth and veracity, and yet may have been a very quiet and peaceable person. Tbe trial court did not err in excluding that part of Tom Brooks’ reply to tbe state’s question, as it was not responsive to said question.

Tbe predicate attempted for tbe contradiction of tbe witness Dr. Eiland was denied by bim, and, while tbe trial court subsequently permitted Johnson to testify to statements made by said Dr. Eiland, this evidence was subsequently excluded, and if there was error in admitting tbe evidence of Johnson, it was cured by tbe exclusion of same.

Tbe witness Dr. Eiland was asked by counsel for tbe state: “Q. I did not ask you for that. I ask you if be (meaning tbe defendant) made any threats against Stamps. Did be? A. Under certain circumstances be did. Q. Under certain circumstances be did? A. Yes.” While this reply of tbe witness tended to qualify tbe threat or show that it was conditional, it was responsive to tbe question asked and was sufficient to impress upon tbe minds of tbe jury that tbe defendant bad threatened tbe deceased, and may have bad great weight with tbe jury, and tbe defendant was entitled, upon cross-examination, to have tbe witness state just what tbe defendant said to Dr. Eiland about the deceased in order that it could be ascertained whether or not it was a. threat, and, if one, the circumstances under which it ‘was made. The witness was permitted to state that the defendant made what he regarded as a threat under certain circumstances, and jet the defendant was deprived of having the jury informed as to what he said and the circumstances under which he said it. This was not only error but Avas calculated to be highly prejudicial to this defendant.

The other exceptions as to the ruling upon the evidence are not only without merit, but a dismission of same can serve no good purpose.

Charges 11 and 22, refused the defendant, if not otherwise faulty, predicate self-defense upon a reasonable belief on the part of the defendant that he was in actual or apparent peril. While a defendant may act on appearances, he must in the meantime entertain the bona fide belief that he is in actual and not apparent peril. In other words, the appearances of danger, whether real or apparent, must be bona fide believed by him as indicating actual peril.

Charges 1 and 2, refused the defendant, should have been given. They assert correct legal propositions and were not abstract. Nor did they relieve the defendant of the burden of proving insanity. Parsons v. State, 81 Ala. 577, 2 South. 854, 60. Am. Rep. 193. Nor can their refusal be justified because bad in form, for, if they were true, the defendant was entitled to an acquittal, regardless of the form of the verdict. — Gilbert v. State, 172 Ala. 386, 56 South. 136. These charges did not attempt to direct any particular form of verdict but simply required an acquittal upon belief of the facts hypothesized, and it was for the trial court to instruct the jury as to the form of verdict.

Charges 3, 4, 5 and 6, if not otherwise faulty, can be condemned as being argumentative.

The other charges refused the defendant were either faulty or were covered by given charges.

The judgment of the circuit court is reversed, and the cause is remanded.

Reversed and remanded.

Dowdell, O. J., and Mayfield and de Graffenried, JJ., concur.