Forney v. State

98 Ala. 19

• Court: Supreme Court of Alabama
• Decided: November 15, 1893
• Status: Published

Opinion

McCLELLAN, J.

The Act of February 28, 1887, (Acts 1886-7, p. 151) amended by Act of February 29, 1889, (Acts of 1888 — 9,' p. 77) does not apply to tbe County of Marshall. The statutory provisions relating to the drawing of grand and petit jurors in that county are those found in the Code of 1886, Part 5, Title 3, Chapter 4, §§ 4299 et sequitur, which do not require the separate and successive drawing of grand and petit juries respectively.—Dotson v. State, 62 Ala. 141. The objections taken by the defendant to the manner of drawing the grand jury which returned the indictment against him and the petit juries for the week of his trial, which proceeded on the ground that section 4, of the Act referred to, had not been observed by the jury commissioners, were, therefore, without merit. Moreover had the act in question obtained in Marshall county, this objection would not have availed the defendant as to the grand jury, because it is not one which is allowed to be entertained by section 4445 of the Code.—Murphy v. State, 86 Ala. 45; but the objection would be good against the venire of petit jurors under the Act of 1887, since section 4445 has no application to petit jurors. Wells v. State, 94 Ala. 1.

We discover no error in the rulings of the trial court on the admission of testimony. Had the offer of the defendant in respect of the shooting at Ellis by the deceased been simply to prove the fact that the deceased did shoot at Ellis, the testimony ought to, and, we presume, would, have been received. Taken with other evidence in this connection, the fact that deceased shot at Ellis, tended to throw light on his intentions, according to one phrase of the evidence, he ai-tempted to execute, toward the defendant, and to give a deadlier cast to his threats.

The following written charge was requested by the defendant: “If the jury upon considering all the evidence have a reasonable doubt about the defendant’s guilt arising out of any part of the evidence, they should find the defendant not guilty.” It was refused. It should have been given.—Hurd v. State, 94 Ala. 100. And this action of the court must work a reversal of its judgment.

The remaining charges refused to the defendant were, severally, either affirmatively unsound, or abstract, or misleading, or argumentative, or confusing; and some of them were infected with two or more of these infirmities. We need not discuss them in detail. Each of them was properly refused.

Some other questions arose on the organization of the trial jury. They need not arise on another trial, and we do not consider them.

Reversed and remanded.