Shubert v. State
Shubert v. State
Opinion of the Court
delivered the opinion of the court.
The motion to quash the special venire because the name of one <of the thirty drawn and summoned was omitted from the copy furnished the prisoner was properly overruled. The omission was a mere inadvertence, and no harm was done the prisoner by the action of the court in the matter. The person whose name was left off the copy given the prisoner was set aside by the court, and a jury was selected from the other twenty-nine men of the .special venire, and without an exhaustion of the peremptory challenges allowed the prisoner by law.
It is a mistake to suppose that the prisoner has a vested right to a particular person of the special venire. The statutes providing for a special venire and giving the prisoner a copy of the indictment and list of the special venire summoned are designed to secure an impartial jury to try him, and where that is accomplished no ground for complaint exists.
The instructions gi ven at the instance of the state are free from objection. All that can be urged against the 10th is that it is another instance of the vain attempt to do the impossible, i. e., to define that indefinable thing, reasonable doubt, all efforts at which seem to us calculated only to confuse and mislead.
The 7th instruction asked by the prisoner was rightly refused, because it coupled the preceding difficulty between the parties with
The 9th instruction asked by the accused was properly refused because it invokes a doubt upon a doubt as entitling to an acquittal, and likewise claims it as a right, if the testimony of defendant “ tends to show him innocent of the charge and the jury are uncertain whether such testimony is true or not.” Surely, this is not the law.
The defendant cannot complain of the failure of the court to define manslaughter, as he did not seek to obtain any definition of it.
'Affirmed.
Reference
- Full Case Name
- B. E. Shubert v. State
- Cited By
- 10 cases
- Status
- Published
- Syllabus
- 1. Criminal Procedure. Special venire. Omission of name in list furnished accused. A special venire will not be quashed because in the list given to the prisoner the name of one of the persons drawn is inadvertently omitted. 2. Object of Special Venire. Bights of defendant. The defendant has no vested right to any particular person on a special venire. If he secures an impartial jury in his trial, the purpose of the ■ statute has been accomplished, and there can be no ground for complaint. 3. Instruction. Seasonable doubt. Doubt upon a doubt. It is error to instruct the jury that if there is any fact or facts in evidence, which if true, would cause the jury reasonably to doubt the guilt of accused, and if the jury are uncertain whether such fact or facts be true, they should acquit. Such instruction invokes a doubt upon a doubt. 4. Same. Evidence tending to show innocence. Effect of doubt. An instruction which tells the jury that it must acquit if the testimony for the defense tends to show defendant innocent, and the jury is uncertain whether such testimony is true or not, is erroneous, and it is proper for the court to refuse it. 5. Instruction Defining Offense. Failure of defendant to apply for same. A defendant, who upon a, trial for murder is convicted of manslaughter, cannot complain of the failure of the court by instruction to define manslaughter to the jury, if he did not ask for such definition.