Whitmore v. State

52 So. 909, 168 Ala. 45, 1910 Ala. LEXIS 515

Opinion

McCLELLAN, J.

The complaint against the method pursued to constitute the jury to try this defendant is based, as appears from the brief of counsel, upon the misconception that the jury law, approved August 31, 1909 (Gen. Acts Sp. Sess. 1909, p. 305 et seq.), was in effect when the defendant was tried. For some purposes it was in effect; but by section 17 (page 312) it was postponed, in partial operation and effect, covering the matter the appellant questions on this appeal, until the first Monday in January, 1910.

There is no merit in the criticisms of the organization of the jury for the trial of this defendant.

The refusal, to defendant, of charge 4 accorded with the ruling here on a duplicate of that charge; charge 7 in Shirley v. State, 144 Ala. 35, 42, 40 South. 269.

Charge 5, refused to defendant, is confused, not clear. To what proposition, of the several set forth therein, the concluding sentence had reference is so doubtful as to be misleading. Besides, it omitted in its hypothesis, the bona fide belief of defendant of his peril at the time he shot deceased. The charge probably has other vices.

Charge 3 was well refused. It, like the refused charge 5', omitted, in hypothesis, the bona fide belief of defendant of his peril at the time he shot deceased. It may have other infirmities.

There is no error in the record.

Affirmed.

Simpson, Mayfield, and Evans, JJ., concur.