Davidson v. State

The fact that one of the jurors, Tom Edmonds, did not reside in Marshall county, did not afford a ground for the challenge of the entire array of regular jurors drawn for the week nor for a motion to quash the entire venire. Section 29 of the Jury Law; Acts 1909, p. 317; Whitehead v. State, 206 Ala. 288,90 So. 351; Smith v State, 209 Ala. 666, 96 So. 779, and cases there cited. Neither was there error in refusing to quash the venire because of error in the name of Jurors Bagwell and Kennemar. Section 29 of the Jury Law; Smith v. State, supra; Jones v. State, 17 Ala. App. 447, 86 So. 123. The fact that the trial court excused a grand juror for a good and sufficient cause or excuse did not affect the validity of the indictment; from aught appearing there were a sufficient number left to constitute a legal grand jury.

There was no error in permitting the state to prove by the witness Ola Nailor that defendant was armed with a gun when at her house with the deceased the day of the killing and just previous thereto, that the defendant threatened to kill deceased, and that he walked off by him with his gun drawn. These facts seem to have been a part of a continuous transaction resulting in the homicide, which occurred shortly thereafter down the road after the parties left the house of the witness. Blair v. State (Ala. Sup.) 99 So. 314;¹ Jordan v. State, 81 Ala. 20, 1 So. 577

There was no error in admitting the deceased's statement that the defendant shot him as a proper predicate was laid to render it a dying declaration.

The other objections and exceptions to the rulings on the evidence are so manifestly without merit that a discussion of same can serve no useful purpose.

That portion of the argument of the solicitor as objected to was not so objectionable as to constitute reversible error. Ex parte State ex rel. Davis, Attorney General, 210 Ala. 96,97 So. 573. Moreover, there was no motion to exclude same. Lambert v. State, 208 Ala. 42, 93 So. 708.

There was no error in refusing defendant's requested charge 1. In the first place, it is not based on the evidence in the case. Edwards v. State, 205 Ala. 160, 87 So. 179. Second, it is abstract, as there was no evidence that the character of the deceased was that of a dangerous or violent man.

Charge 2 was properly refused. If not otherwise bad, it instructs for an acquittal if any one juror has a reasonable doubt of the defendant's guilt. This fact should prevent a conviction, but would not authorize an acquittal. Charges 3 and 4 are likewise faulty. Charge 5 was well refused for the use of the word "supposition." Walters v. State (Ala.App.) 95 So. 207.² Charge 6 is abstract, there being no evidence as to the character of the defendant. Charge 7, whether good or bad, was substantially covered by several of the given charges as well as the oral charge of the court. Same as to charges 8, 9, and 10. Charge 11 pretermits a consideration of the evidence.

Charge 12 was not only abstract, but assumed that there was proof of good character for the defendant when there was no such proof. Charge 13 was covered by given charge 5. Charge 14 was bad for the use of the word "supposition." Moreover, the principle asserted was covered by many of the given charges. Charge 15 instructs for an acquittal if the jury entertain a reasonable doubt as to whether or not defendant acted upon a well-founded belief of peril, and pretermits the other elements of self-defense. Charge 16 was covered by several given charges. Charge 17 asserts no sound proposition of law.

Charge 18 invaded the province of the jury, as it was for them, under the evidence, and not the court, to say whether or not defendant was guilty of a higher degree of crime than manslaughter in the second degree.

The verdict of the jury was not contrary to the great weight of the evidence or the inferences to be drawn therefrom, and the trial court did not err in refusing the motion for a new trial.

The judgment of the circuit court is affirmed.

Affirmed.

SOMERVILLE, THOMAS, and BOULDIN, JJ., concur.

¹ Ante, p. 53.

² 19 Ala. App. 92.