Johnson v. State

This case- AV-as by an order made in the first week of the term set to be tried in the third Aveek of the -same term. Before entering on the trial defendant moved'“to quash the venire because the names- of persons drawn to complete the panel of petit jurors for *42the week do not appear on the list of the venire furnished the defendant.” The record shows that the names referred to in the motion were those of three persons who had not been drawn as jurors for the week of the trial but who in the organization of regular juries for that week had been summoned and placed on those juries under an order of court to supply the places of persons whose names were on the venire for that week and wlm had either not been summoned, or had for sufficient reason been excused from serving. It is “a copy of the venire for his trial” which under section 5273 of the Code must be served on a defendant in a capital case, or liis counsel, an entire day before the day set for trial. The venire to be formed for a, capital case, set for trial as this was, is determined by the statute, which, after providing for the drawing and summoning of special jurors to attend the trial, provides further' among other things that “when the day set for- the trial is a day of a subsequent week of the term, the special jurors so drawn together with the jurors drawn and summoned for such subsequent week, shall constitute such venire.” — Code, § 5005; Baker v. State, 22 Ala. 1. The language of the statute excludes the idea which seems to have inspired the motion that the persons mentioned therein belonged on the venire for the trial of this case. — Green v. State, 97 Ala. 59. The fact that they were placed on the panel for the week pursuant to the summary order would not have authorized the use of their names in ithe selection of tire jury, and it does not appear that they were so used. It is admitted fact that a copy of the indictment together with a list of the special jurors and of the jurors drawn and summoned for the week of trial, were duly served on defendant, and this shows a strict compliance with the statute.

The charges refused to defendant were each objectionable. Charge 7 was calculated to mislead the jury to believe the evidence adduced by the State alone should Show defendant guilty, whereas it was their duty in determining the question of guilt to consider also the testimony introduced by defendant, which in itself proved the homicide was committed by him, if nothing further *43favorable ito the State. A similar charge was approved in Brown's case, 118 Ala. 111, but the report of that case .does not show any evidence proceeded from the defendant’s side of the case tending to prove guilt. .

Premeditation is not an essential element of murder in the second degree as is assumed by charge 11. That charge and charge 20 each ignore the principle that heat of passion to rebut a presumption of malice once raised, so as to reduce a homicide to: manslaughter, must be the result of reasonable provocation. As said in Prior v. State, 77 Ala. 56, there must be a concurrence of adequate provocation and ungovernable passion. Whether such provocation existed was under the evidence in this case a question for the jury. Charge 20 also lacks some words in the phrase “could not rightfully convicted of murder” to give the expression meaning.

■Charge118 is obscure of meaning in the absence of some missing word or phrase next after the words “guilty in either.”

The court’s oral charge, in defining murder in the second degree in connection with what was said in distinguishing the two degrees of murder, was free from error.

No error appearing, the judgment will be affirmed.