McClellan v. State

140 Ala. 99

• Court: Supreme Court of Alabama
• Decided: November 15, 1903
• Status: Published

Opinion

McGLELLAN; C.' J;

-It-does.not appear,by this .record’either-that'the occupations-'of the jurors were-stated on -the -original, venire or-that- they :wer,e -not .stated on the.list-.serted oh'the defendant.,- I-f,.therefore,--the omission -from a-copy'served on defendant of such statement made-'Onrthe original would- constitute .a- variance..-for which: the venire should-be-quashed,-we -could-,yet-not affirm' that-the court-erred in "denying-the .-motion' to quash--made in this case-becafise .the -fact-alleged in the motion does not appear to have been proved. However, Such omission is not a material variance.-White v. State, 136 Ala. 58, 64-5.

Charge 1 requested by defendant was bad for that it did not postulate that the circumstances were such as to reasonably impress the defendant that he was in great and imminent peril.

This charge, moreover, and changes 2 and 3 were bad for omitting to hypothesize defendant’s freedom from fault in bringing on the difficulty.-Henson v. State, 120 Ala. 316.

Charge 4 was properly refused.-Eggleston v. State, 129 Ala. 80.

Charge 5 is abstract in one. or more of its postulates and it is confused in its terms.

Affirmed.