Untreinor v. State

DOWDELL, J. The defendant Avas indicted at the spring term, 1904, of the circuit court of Monroe county for murder in the first degree. On this indictment he Avas tried at the spring term, 1906. He Avas tried and convicted of murder in the second degree and sentenced to imprisonment in the penitentiary for a term of ten years. Before entering upon the trial the defendant made a motion to quash the indictment, upon the ground that the jury Avhich preferred the indictment had not been draAvn according to laAAg in that the jury commissioners in drawing the grand jury dreAV 24 jurors, which Ayas in excess of the number provided by laAV to be draAvn. The grand jury as organized by the court from the list of names so draAvn by the jury commissioners, Avhile it [33] contained the names of the last three jurors drawn by the commissioners, yet by reason of nonattendance and excuses did not exceed the number required by the statute to constitute a grand jury. The court overruled the motion to quash, and in so doing committed no error.— Rogers v. State, 144 Ala. 32, 40 South. 572; §§ 4997, 5269 of the Or. code, 1896. In the selection of the jury from the special venire for the trial of the ease, in the course adopted by the trial court no error was committed. — Brown v. State, 141 Ala. 80, 37 South. 408. After the special venire had been exhausted, before the completion of the jury, the defendant was not entitled to a list of the talesmen summoned to complete the jury. — Or. code 1896, § 5009. There was a variance in the middle initial of the names of the jurors, Schneider, Smith, and Brantley; but this constituted no ground for discarding their names. — Kimbrell v. State, 130 Ala. 40, 30 South. 454. There was no error in refusing to discard the name of the juror Johnson, because of a variance in the name on the list served and that drawn from the hat. It was decided in Teague v. State, 144 Ala. 42, 40 South. 312, that the annexing of “Jr.” to a name constituted no part of the name. The juror Marshall, when examined on his voir dire, answered that he was opposed to capital punishment, but also stated that he would hang some men. The court permitted him to be challenged for canse by the state, to which action of the court the defendant excepted. Being opposed to capital punishment is a statutory ground of challenge for cause. On the statement of this juror, the court committed no error in its action. — Cr. code 1896, § 5018. On the trial there were a number of exceptions reserved to the rulings of the court on the introduction of evidence. The rulings by the court were based on the -theory of two separate and distinct difficulties, and that it was not, therefore, competent to give in evidence the details of a previous difficulty. On the theory of two [34] difficulties, the rulings of the court as to giving in evidence the details of the former difficulty would unquestionably he' in accordance with the la.w. This was the tendency of the state’s witness, Mosely. The evidence of the defendant showed that the difficulty, which resulted in the fatal shooting of the deceased by the defendant, was not a distinct and separate difficulty, but a continuation of the difficulty between the deceased and the defendant’s younger brother. The evidence showed that when the defendant returned to his place of business, and found his brother, Robert Untreinor, absent, and called for him, Robert was at this time engaged in an altercation or difficulty with the. deceased, and the defendant, upon the response by his brother to the defendant’s call for him, that the deceased had a gun on him, immediately went to,where the deceased and his brother were, and taking up the cause of his brother, the fatal encounter resulted. On this view of the evidence, it was competent to show all that transpired from the beginning of the difficulty between the deceased and Robert Untreinor, the defendant’s younger brother, to its end. In this connection it was competent to show the age of Robert Untreinor, and whether or not he was free from fault in bringing on the difficulty, since the question of freedom from fault on the part of Robert might become a very material question as bearing upon the action and conduct of the defendant. The court refused to permit the witness Eddins to testify that the deceased had purchased a gun and shells from him, etc., but later in the trial this witness Avas recalled and testified at length, ansAvering at length all the questions originally propounded to him. If the evidence was erroneously excluded when first offered, its subsequent admission cured the error. — Walker v. State, 91 Ala. 76, 9 South. 87. There Avas no error in alloAAdng the solicitor to question the defendant, Avhen examined as a Avitness in his OAvn behalf, as to his movements after the alleged crimeAvas committed, for the purpose of showing flight. — Elmore v. State, 98 Ala. 12, 13 South. 427. [35] As to who gave the gun to witness Eddins, after the difficulty was over, and the deceased had been killed, was irrelevant and immaterial matter. The bill of exceptions recites that, “when the court concluded its general charge to the jury as set forth above, the defendant’s attorney, before the jury retired, severally and separately excepted tjo each distinct part of the court’s general oral charge, and especially to the charge to the jury upon the weight of the evidence, and especially to the charge setting forth the punishment of manslaughter in the first degree.” This mode of excepting to the oral charge of the court was, in reality, nothing more than a general exception to the charge as a whole, with possibly the exception of the part particularly pointed out as setting forth the punishment of manslaughter in the first degree. When an exception is taken to the charge of the court as a whole, such exception is unavailing, unless the charge is as a whole bad. A charge similar to written charges 1, 2, and 9, requested by the defendant, was condemned in Koch v. State, 115 Ala. 99, 22 South. 471. See, also, Crane v. State, 111 Ala. 45, 50, 20 South. 590. In the present state of the record, under the rulings of the court in the exclusion of evidence, the case as presented to the jury did not involve the question of self-defense. Written charges, therefore, requested by the defendant based on the theory of self-defense, were properly refused. Charge 7, requested by the defendant, was a correct definition of manslaughter in the first degree; but the last clause in the charge, which embraces the definition of manslaughter in the second degree, rendered the charge bad, and it was, therefore, properly refused. Charge 8, requested by the defendant, contained the statutory definition of murder in the first degree, and should have been given. But, since the defendant was acquitted of murder in the first degree, no injury resulted from the refusal. Charge 10 was bad, and the court properly refused the same. [36] Charge 11 and 12 correctly stated the law, and should have been given as requested. Charge 14 was faulty. Hard labor for the county may, in the discretion of the jury, be for 12 months for manslaughter in the first degree, which is less than “a year and a day.” Charge 16, requested by the defendant, was abstract. There was nothing in the case to authorize a charge upon manslaughter in the second degree. We need not consider the question as to the regularity in the calling and Holding of the adjourned term of the court at which defendant was tried, since this question is one which is not likely again to arise. For the error pointed out, the judgment of the circuit court will be reversed, and the cause remanded; Reversed and remanded. Weakley, C. J., and Haralson and Denson, J.T., concur.