Opinion
6 Div. 499.
December 1, 1921. Rehearing Denied January 19, 1922.
Appeal from Circuit Court, Jefferson County; J. C. B. Gwin, Judge.
Pinkney Scott, of Bessemer, for appellant.
The court should have granted the motion to quash the venire, and not put the defendant upon a venire of only 55. 133 Ala. 170, 32 So. 851; 174 Ala. 16, 56 So. 998, Ann. Cas. 1914B, 760; 172 Ala. 418, 55 So. 601; 171 Ala. 38, 55 So. 118; 67 So. 989. Charge 3 should have been given, as should charges 7, 10, and 11. 112 Ala. 1, 21 So. 214; 71 Ala. 336; 60 Ala. 26; 1 Mayfield, 655. Counsel discuss the other assignments of error, but without citation of authority.
Harwell G. Davis, Atty. Gen., and Ben G. Perry, of Bessemer, for the State.
The act of 1919 does not violate the Constitution. 123 Ala. 84, 26 So. 516. There was no merit in the contention that 93 names were drawn, instead of 90, as affecting the validity of the venire. 55 So. 610. The court may excuse sick or disqualified jurors, and may require the defendant to strike from a venire not having on it the names of jurors who are then present, but engaged in the trial of another cause. 56 So. 610; 129 Ala. 41, 29 So. 929. The dying declaration was properly admitted. 201 Ala. 446, 78 So. 824. The court properly refused charge 3. 114 Miss. 403, 75 So. 251; 15 Ala. App. 665, 74 So. 757. On these authorities, the court also properly refused the other charges.
The act of 1919 (page 1039), amending certain sections of the Jury Law of 1909, does not offend so much of section 45 of the Constitution as provides that:
"No law shall be revived, amended, or the provisions thereof extended or conferred, by reference to its title only; but so much thereof as is revived, amended, extended, or conferred shall be re-enacted and published at length."
The amendment here is complete and intelligible and original in form, and can be understood without reference to so much of the original act as is sought to be amended. State ex rel. Terry v. Lanier, 197 Ala. 1, 72 So. 320; State v. Rogers, 107 Ala. 444, 19 So. 909, 32 L.R.A. 520; Montgomery v. Birdsong, 126 Ala. 645, 28 So. 522.
The fact that the venire was fixed at 90 and the court drew 93 names was not an error of which the defendant can complain. The number fixed as well as the number drawn were within the minimum and maximum as fixed by law. Walker v. State, 204 Ala. 474, 85 So. 787; Rudolph v. State, 172 Ala. 379, 55 So. 610.
It is next insisted that after the return as to the jurors found and present and not excused the number was reduced to 55, and that the list from which the jury was selected contained only 42 names. In other words, that the defendant was deprived of 13 names in the selection of his jury. It appears that the court for good cause excused one of said 13, and the other 12 were engaged in the trial of another cause. Section 32 of the act fixes the minimum number for the list at 30, and the list here contained 42 names. We do not think that the trial court had to postpone this case until the 12 jurors engaged in the trial of the other case got through, or in omitting for a good excuse the other juror. It has been heretofore held, when the jury law was stricter and the construction of same more technical than at present, that when some of the veniremen were engaged upon another case the trial court could proceed without them. Dorsey v. State, 107 Ala. 160, 18 So. 199, and cases there cited. The latter part of section 32 authorizes the trial of two or more capital cases the same day and by the same venire.
We think that the testimony showed a sufficient predicate that the declarations of Alexander, the deceased, to Dr. Waldrop were made by him under a sense of impending death, when the motive for falsehood may be presumed to have been lost in the despair of life. Dr. Waldrop told him that he could not get well, but would die, and his statement showed that he believed or thought he would die. Patterson v. State, 171 Ala. 2, 54 So. 696, and cases there cited.
As a part of the res gestæ and without objection, some of the state's evidence showed that at the time of the shooting, about 3:30 p. m., the defendant was under the influence of whisky, which fact was subsequently contradicted by some of the defendant's evidence. Therefore the evidence of the Deputy Kemp that defendant was under the influence of liquor when he arrested him about 5 o'clock the same afternoon was corroborative of the state's contention as to his condition at the time of the difficulty.
Threats by the deceased against the defendant are admissible, whether communicated to the defendant or not, when there is evidence tending to show that the deceased was the aggressor or made hostile demonstrations tending to produce the honest belief on the part of the defendant at the time of the fatal act that he was in peril of life or limb or grievous bodily harm. Wilson v. State, 140 Ala. 43, 37 So. 93. The trial court erred in not letting the defendant's witness Cooper testify to threats made to him by deceased against the defendant. The witness Dock Baggett had just testified to a conversation with the deceased as to how the difficulty started and what transpired, and from which the jury could have inferred that he, and not the defendant, was the aggressor, and that the defendant was in danger of serious bodily harm. Whether this was the proper way to prove this (Wilson v. State, supra) matters not, as it was in evidence without objection, and with this evidence in the defendant should have been permitted to show threats.
At the time Mrs. Silvia was asked if defendant had not objected to her keeping company with deceased and if she had not discussed the matter with deceased, no proof had been offered tending to show that the deceased was the aggressor, and that the defendant was acting in self-defense, so as to bring the same within the rule declared in Gafford v. State, 122 Ala. 54, 25 So. 10. The trial court therefore properly sustained the objection to same. True, an objection was sustained to the question to defendant as to his objecting to his sister, Mrs. Silvia, keeping company with the deceased, and after defendant had introduced evidence tending to show self-defense, but there was no evidence showing, or offer to show, that deceased knew of his so objecting. Moreover, the question seems to have been subsequently answered by the defendant.
While we have not discussed all of the rulings upon the evidence, the same have been considered, and we fail to find that the trial court committed reversible error in respect thereto, except as above indicated.
Charge 1, refused the defendant, if not otherwise faulty, pretermits a bona fide, or honest, belief on his part that he was in danger of serious bodily harm. Cheney v. State, 172 Ala. 371, 55 So. 801.
Charge 3, requested by the defendant, was properly refused. It invaded the province of the jury, as it was for them to determine whether or not defendant was acting on the defensive, for if he was acting on the offensive he had no right to invoke the home of his mother, where he was a visitor, as against a duty to retreat. Walker v. State, 205 Ala. 197, 87 So. 833.
Defendant's refused charge 4 was sufficiently covered by his given charge 5.
Defendant's refused charge 7, if not otherwise bad, instructs an acquittal of the defendant for murder in the second degree or manslaughter, as well as murder in the first degree, unless the killing was with deliberation and premeditation, and which are essential only as to murder in the first degree.
Charge 10, refused the defendant, forbids a conviction of murder against the defendant in either degree, unless it is shown beyond a reasonable doubt that there was deliberation and premeditation in the mind of the defendant, elements not essential to murder in the second degree.
Charge 11 was manifestly bad, and was properly refused.
Defendant got the full benefit of his refused charge B. by his given charge 14 and in the oral charge of the court.
For the error above pointed out the judgment of the circuit court is reversed, and the cause is remanded.
Reversed and remanded.
SAYRE, GARDNER, and MILLER, JJ., concur.