#### Mathes *v.*The State.

*Murder.*

(Decided Dec. 21, 1911.

Rehearing denied Jan. 30, 1912.

57 South. 390.)

1. *Indictment and, Information; Quashing; Grounds.*— Under sections 20 and 23, Acts 1909, p. 314, an indictment was not subject to a motion to quash because the judge before organizing the grand jury drew from the jury box sufficient additional jurors 'to complete the juries required.

2. *Same; Illegal Juror; Exceptions; necessity.*— Where no objection is taken or exception reserved in the court below, a conviction will not be reversed because of the fact that the grand jury which returned the indictment contained a person who had not been drawn as a grand juror.

3. *Homicide; Instructions; Self Defense.*— A charge on self defense which makes the defendant’s belief as to his danger, and his understanding as to what was necessary to entitle him to act in •self defense, the test of the right to act in self defense, rather than what the law requires as sufficient to authorize such action, is bad and properly refused.

4. *Same.*— A charge as to self defense which ignores the element ■of retreat is properly refused.'

*85. *Same.*— A charge of self defense which singles out a part of the evidence and gives it undue prominence, and limits the question of freedom from fault and duty to retreat to a restricted ‘ time, and which is involved in its statements as to defendant’s duty to retreat, is properly refused.

6. *Same.*— A charge which authorizes defendant to act on his honest belief as to the necessity of taking life without regard to whether his belief was such a belief as would have been entertained by a reasonably prudent man under the same circumstances, is erroneous; and, such charge is not cured by the further statement that whether such danger was real or apparent made no difference provided i-t was such as to convince a reasonable man that it was necessary to act to save himself, as this merely requires the necessity for some.action on the part of the defendant to save-himself.

Appeal from Baldwin Circuit Court.

Heard before Hon. A. E. Gamble.

Andrew’ J. Mathes w’as convicted of murder in tbe second degree, and be appeals.

Affirmed.

Tbe following charges were refused to tbe defendant: (1) “In tbis case tbe proof show’s that the killing was done in a sudden rencounter. Tbe defendant sets up tbe defense that be did tbe killing in bis own necessary self-defense. If you believe from tbe evidence introduced that at tbe time of tbe killing tbe defendant was free from fault in bringing on tbe difficulty, and bad a right as a reasonable man to believe from tbe language and conduct of Ward, taken in consideration with bis previous threats, that tbe defendant at tbe time wms in danger of death or great bodily barm, and that to have attempted to retreat out of tbe danger in wdiicb be was at the. time wmuld have been dangerous to life and limb, and if the defendant actually believed that be w’as in danger, then be had a right to shoot Ward in wdiat be understood to be his necessary self-defense.” (2) “It is not necessary that- there should be actual danger of death or great bodily barm, in order to justify tbe taking of human life; but if the jury is satisfied from all tbe evidence that tbe circumstances attending tbe firing of the fatal shot were such as to impress upon the de*9fentlant, and the defendant believed from such circumstances, that he was in imminent peril of danger to life or limb at the time he fired the fatal shot, and that his action in so firing was necessary in order to prevent death or great bodily harm to a person, then the jury must acquit the defendant, unless they further believe that the defendant was not free from fault in bringing • on the difficulty.” (3) “The court charges the jury that the danger that will excuse one hilling another need not be real or actual. It may now be known that all the appearances of danger were false, and Ward never intended to do the defendant any harm, and that he did not have a weapon; yet, if the jury believe from all the evidence in this case that the appearance of danger surrounding the defendant at the time was such as to pro duce a reasonable belief in the mind of the defendant that his life was in danger, or that he was about to suffer great bodily harm, and that there were no other reasonable means at the time open to the defendant to avoid the danger, but by taking Ward’s life, the defendant being without fault at the time, the law holds him harmless, and the jury must acquit.”- (4). “The court charges that if the jury should believe from the evidence that the deceased, Ward, was a violent, dangerous, turbulent, or bloodthirsty man, and that he had threatened to kill the defendant, and if the jury further believe from the evidence that the defendant did not bring on the difficulty, and that there was no reasonable mode of escape left open to him without increasing his peril, and that if the deceased, Ward, assaulted the defendant and attempted to carry out the threats previously made by him, if you believe such threats were made, and that the defendant fired the fatal shot under the honest belief that there was a present, impending, or imperious necessity to strike or to shoot to save him*10self from death or great bodily harm, then it would be yonr duty to acquit the defendant, and it would be immaterial as to whether said danger was real or apparent, provided it was such as to convince a reasonable man that it was necessary for him to act in order to save himself, and provided, also, the defendant was free from fault in bringing on the difficulty.” (5) “The court charges the jury that, if they believe from the evidence that at the beginning of the difficulty the defendant merely answered one verbal insult or epithet with another, then this does not deprive the defendant of the privilege of afterwards defending himslf, pis, vided he did not fight willingly. If the defendant was not the. author or originator of the difficulty, he may still protect his person from assault and injury by opposing force to force so far as may be necessary, taking care that he used no more violence than is requisite to repel the attack of plaintiff.”

Leslie Hall, and William S. Anderson, for appellant.

The indictment should, have been quashed because of the illegal manner in which the grand jury was selected. — Sec. 18, Acts 1909, p. 305; *Cochran v. The*State, 89 Ala. 40. The grand jury was composed of several unauthorized persons which rendered the indictment *invalid.*— Norclin *v. The*State, 143 Ala. 13; *Osborn v. The State,*154 Ala. 44; *Spivey v. The State,*56 South. 252; *Frier v. The State,*146 Ala. 4; *Tncherv. The State,*152 Ala. 4. It further appears that there was a person serving on the grand jury which returned the indictment who was not drawn as a grand juror. This rendered the indictment *defective.*— Cochran *v. The State, supra; Osborn v. The State, supra; Bean v. The State,*126 Ala. 1. The court erred in refusing charge *2.*— Holmes *v. The State,*100 Ala. 80. The court *11erred in refusing charge *4.*— Trammel *v. The State,*1 Ala. App. 83; *Goodwm v. The State,*102 Ala. 100. Counsel discuss the other charges refused, but without citation of authority.

R. C. Brickele, Attorney General, and W. L. Martin, Assistant Attorney General, for the State.

The motion to quash the indictment Aims properly over*ruled.*— Spivey *v. Idie State,*56 South. 252; Sections 20 and 23, Acts 1909, p. 305. No objection or exception was taken in the trial court to the fact that Rogers was not draAvn to serve on the grand *jury.*— Wells *v. The State,*88 Ala. 239; *Welch v. The State,*96 Ala. 92. The charges Avere not *numbered.*— Gibson *v. The State,*89 Ala. 122; *Martin v. The State,*56 South. 3. Counsel discuss charges refused, but without citation of authority.

PELHAM, J.

Appellant was indicted for murder in the first degree, and convicted of murder in the second degree. The defendant moved to quash the indictment, and also filed pleas in abatement setting up that the grand jury Avhicli returned the indictment was not organized according to law in that the judge of the court who organized the grand jury, before proceeding to organize said grand jury from those jurors then in attendance upon the court, dreAV from the jury box the names of sufficient additional jurors necessary to complete the juries required, and that such names last drawn were placed in the hat or box together with the jurors first drawn, and from the list as thus completed and placed in the hat or box the names of the jurors to constitute the grand jury were drawn.

Section 20 of the jury law approved August 31, 1909 (Acts 1909, p. 314), provides that whenever there are *12not enough' qualified jurors in attendance upon the court to form the juries required that the judge of the court shall draw from the jury box names of as many jurors as he may deem necessary to complete all juries then required, and that “the court shall then proceed to impanel, or complete the impaneling of the juries as provided in this act.”'

Section 23 of the jury law provides “that no objection to an indictment on any ground going to the formation of the grand jury which found the same can be taken to the indictment, except by plea in abatement to the indictment; and no objection can be taken to an indictment by plea in abatement except upon the ground that the grand jurors who found the indictment were not drawn by the officer designated by law to draw the same.”

The cases of *Osborn v. State,*154 Ala. 44, 45 South. 666, and *Nordan v. State,*143 Ala. 13, 39 South. 406, cited by appellant are not in point. In those cases the illegal action consisted in adding to the number of grand jurors after the grand jury had been once légally organized, and not to the manner of drawing, summoning or impaneling the jurors to be organized as a grand jury. In *Spivey v. State,*56 South. 232 the jury was not drawn by the officer designated by *law.—Fryer’s* Cas*e,*146 Ala. 4, 41 South. 172, and *Tucker’s Case,*152 Ala. 1, 44 South. 587, are inapplicable. The former case was where a grand jury had been organized without legal warrant or authority in law and held at a time not allowed by law. The latter case is one where the objection was that the officers designated by law did not draw the jury. The ruling of the trial court in denying the motion to quash and in sustaining the state’s demurrers to the defendant’s pleas in abatement is free from *error.*—J*ordan Crandall v. State,*2 Ala. App. 112, *1356 South. 873; see, also, *Thompson v. State,*122 Ala. 12, 26 South. 141.

The insistence of counsel for defendant in his brief that the indictment is void because one Christopher Columbus Rogers served on the grand jury that returned the indictment, and was not, at any time, drawn as a grand juror, cannot be reviewed when it appears that the question is raised for the first time in this court and no objection was made or exception reserved in the court below. It has been uniformly- held that such an objection, to be available, must have been raised in the lower court.—Code 1907, § 6256; Acts 1909, p. 315, § 23; *Nugent v. State,*19 Ala. 540; *Morgan v. State,*19 Ala. 556; *Bass v. State,*37 Ala. 469; *Harrington v.*State, 83 Ala. 9, 3 South. 425; *Tipton v. State,*140 Ala. 39, 37 South. 231; *Hatch v. State,*144 Ala. 51, 40 South. 113; *Harrell v. State,*160 Ala. 91, 49 South. 805. The charges requested by the defendant are not numbered, as they should be to avoid confusion in discussing th*em.—*Gibson *v. State,*89 Ala. 122, 8 South. 98, 18 Am. St. Rep. 96; *Ry. Co. v. Cofer,*149 Ala. 565, 43 South. 102.

The first charge set out in the record as requested in writing by the defendant and refused is erroneous, in that it predicates the belief of defendant that he was in danger, and what 'lie understood to be necessary to entitle him to act in self-defense, and not what the law requires as sufficient to authorize such action. The second charge set out ignores the element of retreat. The third charge set out as refused singles out a part of the evidence and gives undue prominence to it and limits the question of freedom from fault and duty to retreat to a restricted time. The charge is not a sufficient statement of legal principles, but-is confusing in its tendency and involved in the statements as to defendant’s *14duty to retreat. The fourth charge authorizes the defendant to act npon his honest belief that there was a necessity to defend himself even to the taking of the life of his assailant, without regard to whether his honest belief was such a belief as would under similar circumstances be entertained by a reasonably prudent man. The statement in the latter part of the charge that whether the danger was real or apparent makes no difference provided it was such as to convince a reasonable man that it was necessary for him to act to save himself does not relieve the charge of the vice pointed out, as this statement does not predicate the existence of- a real or apparent necessity for the defendant to kill the deceased in order to save himself, but predicates merely the necessity of some action on his part to save himself.

The fifth charge set out ignores entirely the element of retreat as an essential in acting in self-defense, and is unintelligible.

The charges given at the request of the state are not numbered or designated in any way, and confusion would follow their discussion without setting them out. This is unnecessary, even if incumbent on the court, as a careful examination of these charges leads us to the conclusion that they are all correct statements of principles of law and Avere properly given under the evidence, although the better practice is not to ask or give numerous Avritten charges in behalf of the state.

The record presents no error prejudicial to the defendant for revieAv, and the case will be affirmed.

Affirmed.