Gater v. State

TYBON, J. Objection was taken to the indictment, by demurrer, on the ground that it appears to have been found at the spring term, 1903, of the circuit court, while the endorsements on it showed it to have been preferred at the fall term, 1903. [18] This objection is predicated upon the theory that the caption of the indictment shows it to have been preferred at the spring term. It is true the words “Spring term 1903” are found in the beginning of the indictment and this fact is made the basis of the objection. But these words 'do not constitute the caption. As said in Overton v. State, 60 Ala. 73 : “The caption of an indictment is that entry of record showing when and Avhere the court is held, who presided as judge, the venire, and who were summoned and sworn as grand jurors; and this caption is applicable to, or is a part of every indictment, and need not be again repeated in any part of the indictment. * * * * At least, this part of the record, though not such a portion of the indictment as that it must be included in the copy thereof which is required by law to be' served on a prisoner about to be tried, is SO' connected with, and so appertains to it, that it may properly be referred to as showing in what court, at what term, by what grand jury, and in what county, the presentment was made. But, even this reference is not necessary, when the trial takes place in the court, and at the term, when and where the indictment was found.” See also Quinn v. State, 49 Ala. 354; Caldwell v. State, Ib., 34; Toole v. State, 89 Ala. 131. The indictment has endorsed upon it, “A true bill,” signed by the foreman of the grand jury who is shown by the caption to be the person appointed by the court as foreman at the fall term 1903, and also has an endorsement on it in these words, “Filed in open court 4th day, November, 1903” which issigned by the clerk of the court. — §§4914 and 5039 of the Code of 1896. It is, therefore, clear that the -words “Spring” should have been “Fall” and is a misprison. The demurrer was properly overruled as was also the objection to testimony predicated upon the same proposition. The motion to quash the venire was properly overruled. — Webb v. State, 100 Ala. 47. The testimony in behalf of the prosecution tended to show that defendant killed the deceased in an effort to carry out a premeditated design, unlawfully and ma-li19 ciously to effect tlie deatli of one Hardie. The killing occurred between the hours of two' and. four o’clock in the afternoon. The defendant offered testimony tending to show that he was drunk on the morning of the day of the homicide, and as late as twelve or one o’clock of that day. The State in rebuttal introduced witnesses who testified that he was sober o-r appeared to be at the time of the killing. On these tendencies of the evidence the defendant requested charge numbered 14 which was refused. This (“liarge. asserts that “the burden is not on the defendant to show he was incapable of forming an intention to kill, etc.; and Whitten’s Case, 115 Ala. 72, is relied upon as shoAving error in the ruling of the court. The charge under consideration in that ease Avas materially different from this one. While it is true that, in one part of the opinion in that case, it is asserted that the burden is not on defendant, yet, it is evident front the whole context, that the learned judge meant to' say that he was not required to establish his incapacity by a preponderance of the evidence or to the reasonable satisfaction of the jury. In other Avords, that the defendant Avas entitled to his acquittal if the testimony introduced by him tending to show drunkenness to such degree as to render him incapable of forming the intent to take life created a. reasonable doubt of his guilt when considered by the jury in connection Avith all the evidence in the case. The opinion deals Avith the degree of evidence necessary to a conviction, rather than with the duty or necessity of offering any evidence. The evidence in this case established without dispute a killing of deceased by defendant Avith a deadly weapon, without excuse or extenuation. The presumption in the absence of evidence to the contrary, must be indulged that he Avas capable of forming and entertaining the intent to take life. In view of this presumption, the burden Avas upon him to overcome it, not by a preponderance of the evidence, it is true, but to, at least, create a reasonable doubt of his capacity. The charge was properly refused. [20] The general charge of the trial court when read as a whole is in accord with these views, and the exception reserved to it is without merit. Whether defendant saw Hardie when he fired any of the shots, was wholly immaterial if he fired them with the intent to kill him. Charges 18, 19, 20, 22, 23, 24, 25, and 26 were, therefore^ properly refused. Charges 21 and 30 are so manifestly bad that it is unnecessary to comment upon them. No evidence of defendant’s character was offered upon the trial, and there is no presumption that it was either good or bad. — Dryman v. State, 102 Ala. 130. Charges 28, 29 and 31 were, therefore, properly refused. Charge 32 invaded the province of the jury. Affirmed.