Turney v. State

52 So. 910, 168 Ala. 128, 1910 Ala. LEXIS 516

Opinion

McCLELLAN, J.

Under the influence of Carter v. State, 107 Ala. 146, 18 South. 232, it must be held that the trial court properly submitted to the jury the inquiry whether the language attributed to the defendant by the state’s witness, Mrs. Sharp, was, under the circumstances attending its utterance, within Code, § 6217, insulting. It cannot be ruled that, under all the circumstances, the language-so attributed was not susceptible of a meaning vulgar or lewd, and hence, to a female, insulting.

This trial was had in March, 1909. The defendant demanded a “struck jury.” It was refused him. Upon what authority this demand was made, or could be sustained, we are not advised, and have not been able to discern. The provision for “struck juries,” made in Code, § 4635, had application to civil causes only. The absence of one jury serving the court trying this defendant, in the performance of its duty in the trial of another case, warranted the court in directing the summoning of the talesman to complete the jury to try this defendant. — Code, § 7272.

After a careful review, we find no prejudicial (to defendant) error in respect of instructions, special or general, given by the court to the jury.

Affirmed.

Simpson, Anderson, and Sayre, JJ., concur.