#### J. M. S. Davis *v.*The State of Ohio.

1. A return by the sheriff, as to some of the j urymen named in a *venire faciasr*that they “cannot he found in the county,” is equivalent to areturn that they “ are absent from the county,” and authorizes the clerk to issue an *alias venire facias,*as provided in the act of December *4,*1874 (72 Ohio L. 4).

2. "Where part only of the court’s charge to the jury is given in a bill of exceptions, and that part, taken by itself, is susceptible of two interpretations, one of which makes it erroneous, and the other makes it in accordance with law, it will be presumed that the jury, in the light of the whole charge, understood it in the latter sense.

8. Where the fact of killing is proven, malice is to be presumed, and all the circumstances of justification, excuse, or extenuation must be made out by the accused, unless they appear from the evidence adduced against, him.

*370Motion for allowance of a writ of error to the Common Pleas of Hamilton county.

The plaintiff in error was .tried on an indictment for murder in the first degree, and was convicted of murder in the second degree, and sentenced. He now alleges that there were errors in the proceedings relating to the summoning and impaneling of the jury by whom he was tried, and also in the instructions given by the court on the trial.

The record shows that a *venire facias*was regularly issued in the cause for thirty-six jurors, and that the sheriff made return thereon that he had duly served the same upon twenty-eight of the jurors named, but that the remaining eight jurors “ could not be found in the county.” The return did not show that the eight jurors so not found, or ■either or any of them, were dead, absent, or removed from the county, or disqualified from being jurors by reason of insanity, conviction of crime, or because not electors of the county. The clerk thereupon issued an *alias venire facias*for sixteen jurors, twice the number not found. On return ■of the *alias venire facias*the counsel for the accused moved to set it aside, on the ground that the sheriff’s return did not show that the eight unsummoned jurors were dead, insane, absent from the county, or disqualified as jurors, .as specified in the statute of December 4, 1874 (72 Ohio L. 4).

The record further shows that on the trial of the cause, there being evidence tending to show that the defendant was intoxicated at the time of committing the alleged homicide, his counsel asked the court to instruct the jury as follows:

“While drunkenness furnishes no exemption for the commission of crime, it is a fact which the jury ought to consider to determine the grade of the offense. Such testimony is admissible in this class of cases to show that the accused was drunk when he perpetrated the killing, and thus rebut the idea that it was done in a cool and deliberate *371state of mind, necessary to constitute murder in the first degree.” '

The counsel for the defendant also asked the court to charge the jury, that “ when a person upon a sudden quarrel, and before cooling time, unlawfully and without malice intentionally kills another, he commits the crime of manslaughter.” But the record does not show that there was any evidence in the case tending to 'prove such sudden quarrel or intentional killing.

The court refused to give these charges as asked, but charged the jury, among other things, as follows;

“ Drunkenness is no excuse for crime. Crime, when all the acts of the hand and mind which constitute it actually exist, is not the less criminal when committed by a person intoxicated. Yet, nevertheless, when purpose,- premeditation, and deliberation are necessary ingredients of the' crime, as in murder in the first degree, evidence of intoxication is admissible and proper to be taken into consideration by the jury, to determine the question as to the intent, and premeditation and deliberation. But drunkenness is a distinct and' substantive fact, and when set up by the defendant as bearing upon these ingredients should he satisfactorily shown by testimony to have actually existed, and that it was not simulated or assumed, It must not be left to mere conjecture or .assumption. Unless the drunkenness is shown to have been to such an extent as to destroy the reasoning faculties for the time, that is, that accused was so drunk that he did not know what he was about, it is not entitled to great weight. . . . If the jury find that the killing was done while the defendant was drunk, and in a moment of passion, . . . these are proper circumstances to be considered by you in order to determine whether the killing is manslaughter or not. ... If the defendant was suffering from an attack of *delerium tremens,*or total deprivation of his mental faculties, . . . superinduced by intoxication, . . . this exempts the defendant from responsibility for crime, like insanity produced by any other cause.”

*372The court also charged the jury, that “ where the fact of killing has been proved, malice must be intended, and all the circumstances of justification or extenuation are to be made out by the accused, unless they appear from the-evidence adduced against him.”

The record does not set forth all of the court’s charge to-the jury; nor does it set forth any of the evidence, or any of the facts which the evidence tended to prove, except the single fact of drunkenness.

To those parts of the charge above set forth, and to the court’s refusal to give the charges asked, and also to its refusal to set aside the *alias venire*facias, the defendant’s counsel excepted; and they now assign these several rulings of the court for error.

*Blackburn ¡¡¡¡ Shay,*for the motion:

The act of December 4, 1874, Ohio L. 4, provides when the clerk of the Common Pleas may issue an *alias venire facias*for additional jurors in capital cases, The power granted' by said act can only be exercised when one of the conditions named therein is made to appear by the return of the sheriff. The sheriff’s return to the *venire facias*in this case-does not show that any juror named therein, and not served,, was “ *absent*from the county,” nor does it come within any other provision of said law. The *alias venire facias,*then, was without authority of law, and by permitting it to he-issued the legal right of the accused to have the panel filled from the bystanders, as provided in section 131, criminal code, was denied to him. *Doyle*v. *The State,*17 Ohio, 225.

The act referred to is clearly mandatory. *Jones*v. *The State,*8 Western Law Journal, 509.

The court erred in refusing to charge the jury as requested. *Pigman*v. *The State,*14 Ohio, 555; *Nichols*v. *The State,*8 Ohio St. 435.

*G. W. Gerard,*contra.

Welch, J.

We fail to see any error in this record, to-the prejudice of the accused.

*373The statute (72 Ohio L. 4) makes it the duty of the clerk to 'issue an *alias venire facias,*when it appears from the sheriff’s return that any of the jurors named are “ absent from the county.” The return of “ not found,” as to the eight unsummoned jurors, was equivalent to a return that they were “ absent from the county,” and was sufficient authority •for the clerk to issue the *alias venire.*The court, therefore, did not err in refusing to set the *alias venire*aside.

The charge of the court, that malice is to be intended from the fact of killing, and that circumstances of justification or extenuation, not disclosed by the evidence adduced against him, are to be made out by the accused, is in our ■opinion unexceptionable, and the well-settled law of such ■cases.

The charge asked by counsel for the accused, to the effect that an intentional killing upon a sudden quarrel, and without malice, is manslaughter, was substantially given by the court, though not in the form in which it was asked; at ■least there is nothing in the chai-ge of the court, so far as ■set out by the record, in conflict with the charge asked. Besides, this charge may have been properly refused by the ■court, on the ground that it was an abstract proposition, there being no evidence in the case, so far as we can know, tending to show any sudden quarrel.

The other charges excepted to relate to the defense or effect of drunkenness. In so far as they apply to the crime of murder in the first degree, it is perhaps needless to inquire whether they are correct or not, as the defendant was .acquitted of that crime. As applicable to the crime of murder in the second degree, we understand the charge of the court simply to amount to this: that drunkenness, not amounting to insanity, is of little weight in such a ease, unless it exists to an extent which shows that the accused was at the time incapable of forming a purpose, or that he dii not intend the act he did; or unless it caused or was connected with a sudden quarrel, so as to make the act manslaughter. At least, the charge is susceptible of this meaning, and in the absence of the other parts of the charge, *374we are bound to suppose that it was understood in that sense by tbe jury. Understood in that sense, we see no objection to tbe charge. It is substantially what was held in *Nichols*v. *The State,*8 Ohio St. 435.

*Motion overruled.*

McIlvaine, C.J., White and Rex, JJ., concurred; Gilmore, J., dissented. •