#### Johnson *v.*The State.

*Murder.*

(Decided Jan. 12, 1912.

57 South. 593.)

1. *Jury; Number; Venire.*— Acts 1009, p. 317, Sec. 32, is mandatory, and where one is indicted for a capital felony, and seasonably objects to the venire because of the failure of the court to make the statutory order, he is entitled to have the venire quashed.

2. *Homicide; Instruction; Self Defense.*— A charge asserting that to justify the killing of a person in self defense the law says that certain things must be proven by all the evidence in the case to the satisfaction of the jury, is erroneous.

3. *Charge of Cotirt; Reasonable Doubt.*— A. charge asserting that if there is a probability of defendant’s innocence he should be acquitted, is a correct statement of the law, and its refusal error.

Appeal from Winston Circuit Court.

Heard before Hon. Travis Williams, Special Judge.

*48Luther Johnson was convicted of murder in the second degree and he appeals.

Reversed and remanded.

The part of the oral charge referred to in the opinion is as follows: “In order to justify the killing of a human being under self-defense, the law says that certain things must be proven to you by all the evidence in the case to your satisfaction.” The following is charge 22: “I charge you that, if there is a probability of the defendant’s innocence, you must acquit him.”

Jambs J. Ray, for appellant.

The court failed to comply with the requirements of the jury law, and the defendant was entitled to have the venire quashed. — Section 32, Acts 1909, p. 305; *Bailey v. The State,*55 South. 601; *Harris v. The State,*55 South 609; *Jackson- v. The State,*55 South. 118. The court’s oral charge as to the self-defense was *erroneous.*— Henson’s *case,*112 Ala. 49; *Dent’s case,*105 Ala. 14; *Whitton’s case,*115 Ala. 72. Counsel discusses other charges refeused with citation of authority, but in view7 of the opinion it is not deemed necessary to here set them out.

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

The court properly denied the motion to quash.- — Section 23, Acts 1909, p. 305. The court’s charge as to self-defense was *correct.*— Green *v. The State,*143 Ala. 2; *Howard v. The State,*110 Ala. 82; *Cleveland v. The State,*86 Ala. 1. Charge 22 was properly *refused.-*— Saunders *v. Davis,*153 Ala. 375; *Daney v. The State,*141 Ala. 72; *Oroft v. The State,*95 Ala. 3.

PELHAM, J.

The defendant was indicted and tried for murder in the first degree and convicted of murder in the second degree.

*49The fatal difficulty occurred at an entertainment or “party” of a public nature, given at the home of one Rowe, which was attended by the two daughters of the deceased. The defendant started to accompany the daughters of deceased from the place of entertainment to their home, when a difficulty arose between the father and the defendant, resulting in the fatal shooting of the former by the latter. While there is no positive evidence showing that the defendant ivas responsible for the daughters of the deceased going to the entertainment or dance in opposition to his wishes, it is manifest that the father held such a belief, and the difficulty started by the father’s offering objection to the defendant accompanying his daughters, or one of them, home from the dance. The evidence is in conflict as to practically all of the principal particulars relating to the difficulty resulting in the killing. The evidence of the state tends in general to show that, upon the father peaceably and quietly protesting against the defendant’s escorting his daughter home, the defendant persisted, and almost immediately, and without provocation, assaulted the father by shooting him with a pistol three times, inflicting a fatal wound from which death ensued in a few minutes. The evidence for the defense was to the effect that the deceased accused the defendant of surreptitiously taking his daughters, or being the cause of their going, to the dance, applied a vile epithet to defendant, and attacked him Avith a knife, backing him up against a fence, Avhereupon the defendant, in self-defense, shot the deceased.

The defendant being tried on an indictment charging murder in the first degree, it was necessary that the provisions of the jury law (Acts 1909, pp. 305, 317-319, § 32), applicable to a person on trial for a capital felony, be complied with. No order is shown -as required by the provisions, of section 32. The record recital is that, * * *

• 4 OA *50drew from said box the names of 65 persons to constitute a special venire for the trial of this cause.” But the order provided for by section 32 that the court must make, fixing the number of jurors, is not shown to have been made; and the provisions of this statute having been held by the Supreme Court to-be mandatory *(Harris’ case,*172 Ala. 413, 55 South. 609; *Jackson’s case,*171 Ala. 38, 55 South. 118, 120; *Bailey’s case,*172 Ala. 418, 55 South. 601), and the objection of the defendant having been seasonably interposed, the court’s action in overruling the objection made to the venire by the defendant is, under the rulings of the Supreme Court in the cases above cited, error for which the case must be reversed.

Whether or not the court sufficiently inquired into the qualifications of the veniremen who appeared to satisfy the requirements of the statute, as against the specific objections made by the defendant, is questionable; but it is unnecessary to discuss the question, or the various rulings on the evidence and other objections arising on the trial, as the case must be reversed for the court’s error in failing to make the mandatory order required by the statute, definitely fixing the number of jurors; and, the case having been tried by a special judge, the same questions are not likely to occur on another trial.

That part of the oral charge excepted to, in which the court charged the jury that, “under self-defense, the law says certain things must be proven to you by all the evidence in the case to your satisfaction,” is clearly erroneous.

Written charge No. 22,-requested by the defendant and refused by the' court, is the same charge that, to refuse, has - been repeatedly held to be reversible error. These cases are collected and cited approvingly in the recent ease of *Adams v. State, 175*Ala,, 57 South. 591.

*51Some of- the other refused charges are mere copies of charges that have been considered and passed upon by the Supreme Court and approved; but we do not deem that a further discussion of the case would serve any beneficial purpose, and it is unnecessary, as the errors pointed out necessarily require an order of reversal.

Reversed and remanded.