Gaston v. State

60 So. 805, 179 Ala. 1, 1912 Ala. LEXIS 190

• Court: Supreme Court of Alabama
• Decided: June 11, 1912
• Status: Published

Opinion

ANDERSON, J.

The judgment entry sufficiently shows that the jury was drawn in open court, and that the order setting the case, fixing and drawing the venire, and arraigning the defendant is in compliance with the law. Suggestion is made in brief of counsel, as to irregularities in the organization of the regular juries for the week, as well as in the copy served on the defendant, but it does not appear that any objection was taken before entering upon the trial, and it is doubtful if said irregularities would work a reversal of this case had an objection been seasonably made. — Acts 1909, Spec. Sess. p. 305.

¡Defendant’s refused charges 1, 2, 5, 7, 8, 9, 10, and 12 attempt to reduce the offense to manslaughter, upon the theory that the defendant was actuated solely by passion, and before he had sufficient cooling time after being informed of the conduct of the deceased towards the said defendant’s wife. These charges are subject to numerous objections, but it is sufficient to say that they were abstract and inapt, as the undisputed evidence shows that the defendant received the information as to the conduct of the deceased nearly 24 hours prior to the killing, and which was, as matter of law, sufficient cooling time. — Ragland v. State, 125 Ala. 12, 27 South. 983, 1 Mayfield’s Digest, p. 680.

Charge 4, refused the defendant, requires an acquittal unless each and every juror is satisfied of guilt beyond a reasonable doubt. The jury should not convict unless each and every juror is satisfied of the defendant’s guilt beyond a reasonable doubt, but the doubt of a single juror does not authorize an acquittal, as there could be a mistrial if some thought the defendant guilty and others were of the opinion that he should be acquitted.

Charge 15, refused the defendant, Aims not only argumentative, but was in the nature of a lecture to the jury, and there Avas no error in refusing same. — Cox v. State, 148 Ala. 593, 42 South. 815.

Murder in the second degree does not have to include all the constituents set forth in defendant’s refused charge B, and which was properly refused.

Defendant’s refused charge C was properly refused. The constituents therein set up would constitute murder, and not manslaughter. “If the killing was unlawful, but was committed with malice, premeditation and deliberation,” the defendant Avould be guilty of murder. The charge may have been intended to say “without” malice, etc., but as it appears in the record the word “with” and not “without” is used.

The exceptions to the rulings upon the evidence are so palpably without merit that a discussion of same can serve no good purpose.

The judgment of the circuit court is affirmed.

Affirmed.

All the Justices concur, except Doavdell, C. J., not sitting.