Conwill v. State

WALKER, P. J. — In the brief filed by the counsel for the appellant the only contention made is that the record fails to show a compliance by the court with the requirements of the statute (Acts Special Session 1909, [84] pp. 305, 319) as to setting a day for the trial of a person indicted for a capital felony, and as to drawing a special venire of jurors and the service upon the defendant of the list of names of all the jurors summoned for the week in which the trial is set and those drawn for the trial of his case, together with a copy of the indictment. The original transcript sent up on this appeal was defective in the particulars mentioned; but this defect has been removed by the return made to a writ of certiorari. The orders of the court set out in that return constituted a complete compliance with the statutory requirements applicable in such a case. There was evidence tending to prove that the death of the deceased was the result of one or both of two pistol shots, which were fired by some one just outside of a room in which a dance was in progress. The testimony Avas in conflict as to whether those shots were fired by the defendant or by another person. Over the defendant’s objections witnesses were permitted to testify that immediately after those two shots were fired he walked into the room with a pistol in his hand and shot at another person. There was testimony to prove that shortly before this occurrence the defendant had made threats against the deceased and the person in the room at whom he fired. The testimony as to the defendant’s firing the last-mentioned shot was admissible as being, under one aspect of the evidence in the case in reference to a single criminal transaction of which the offense charged constituted a detail, and also as having some tendency, in connection with other evidence in the case, to identify the defendant as the person Avho fired the shots which resulted in the death of the deceased. — Allison v. State, 1 Ala. App. 206, 55 South. 453; Smith v. State, 2 Ala. App. 216, 56 South. 39. [85] There is no merit in other exceptions which were reserved to rulings of the court, made on objections to the admission of evidence. The questions so raised are not such as to justify a discussion of them. A number of written charges which were refused to the defendant involved the untenable proposition that his voluntary drunkenness would constitute an excuse for his killing another. Such charges were properly refused. — Laws v. State, 144 Ala. 118, 42 South. 40. Written charges 10, 19, and 21 were properly refused. There was evidence to support a finding that the defendant voluntarily killed the deceased. This being true, the defendant was subject to conviction of manslaughter in the first degree, though the jury found that he acted without malice. — Code, § 7090; Mitchell v. State, 60 Ala. 26. No error is found in the record. Affirmed.