The Montgomery advertiser., 1902-06-26
oninion hy McClellan. c. J.
cAwLEY V. THE STATE.

OCloAo ehS N%>'
 Opinion by Mcclellan. c. J.
 CAwLEY V. THE STATE.
 Indictment for murder.-Appeal from Cir
 cult Court of Lee.
 Minute entry; when presence of de- fendant shown thereby. .-The minute en- try of the arraignment If defendant un- der an indictment for murder. which re- cites that 'the defendant being in open court attended by his counsel and being duly atraigned." etc. then continues showing the order of the court setting the day for trial and the drawing of the spe- cial yenire, and then sets out the rulings of the court upon the motions to quash such special venire sufficiently shows the the presence of the defendant when the several motions to quash were ruled upon by the court.
 ?. Organization of special venire; when properly quashed.--When in the drawing of names of persons to serve as special jurors for the trial of a-capital case. the names of persons who were drawn TOT the regular petit juries for the week in which the trial was to be had are placed upon the venire, the venire thus drawn Is improper and the court should, on motion of the Solicitor, quash 1t and proceed to draw another from the jury bx.
 3. Same; same; error for court to put back in box names of jurors drawn Tor special venire.-It is error for the court to replace in the jury box the names or jurors drawn to serve upon special ve- nire. and when after this Is done, spe- cial venire Is drawn to try another capi- tai case, and upon it appears the names of the jurors which were drawn upon for mer special venire. the second special ve- rv1n Drnnarlv made. he quashed.
 f. Same; venre not quashed by reason of mistake in name of one of the jurors.D- A mistake in writing the name of one who was drawn as a special juror to try a capital case, furnishes no ground for uuashing the special venire: and the court has authority under the statute Code. Section 5000. to correct this mistake by discarding the name of the person so drawn and ordering another to be forth with summoned to supply his place. 5. Same; not necessary for list to he served on the defendant to show which are special and regular jurors.-The fact that the list of jurors served upon the defendant in a capital case foes not des- fgnate the names of jurors specially drawn and those drawn and supamoned for the week of the court when the trial Is to be had, constitutes no ground for quashing the veaire; the statutes Code. Sections 5004, 527S, not requiring such designation.
 6. Homicide; admissibilty of evidence Where on trial under an indictment for murder. it was shown that the deceased was killed on a road which ran by the defendants house, and there was some evidence tending to show that the de- ceased had passed along said road going to house beyond the defendants only short time before the killing, and there was some evidence tending to show that the defendant had grudge against the deceased, it is competent for the State to ask witness who was shown to have been familiar with the location and dis tance about the scene of the killing. that If a person left the house of the deceased and went along the road to the place of the killing, if there were any lobstruc- tions to prevent such person from being seen from the defendants house.
 :. Homicide; plea of insanity; admissi- bility of evidence.-On trial under an indictment for murder. where the defend- ant pleads not guilty and not guilty by reason of insanity, acts and declarations of the defendant subsequent. as well as previous to the killing. are admissible in evidence to show his true mental condi- ton at the time of the homicide.
 $. t1CnlClue, duInlSslblllNS Oi On a trial under an indictment for mnr- der, where the defendant sets up the plea of self-defense, declarations made by the defendant to d third party, in which he states that the deceased was mad with him and was anxious to get rid of him, the defendant, in order that he could commit an offense which the defendant interfered with, are admissible in evil dence.
 9. Same: same.-On a trial under an in- dictment for murder. where the defsnd- ant sets up self-defense. and there Is evidence tending to establish such de- fense. 1t is competent for the defendant upon being examined as witness in his own behalf, to testify that the deceased was in the habit of carrying pistol
 10 Homicide; self-defense charge to the jury.-On trial under an indictment for murder, where the defendant pleads self-defense, charges requested by the de- fendant, which assume as matter or law that facts postulated therein created lm- minent peril to life or limb, invades the province of the jury, whose duty 1t was to determine whether the defendant was in imminent peril and such charges are properly refused.
 II. Same: charge as to reasonable doubt.-In a criminal case, charge which instTucts the jury that reasonable doubt ''is doubt for which d reason can he given" is properly refused, being calcu- lated to confuse and mislead the jury.
 r. Same: pleas of self-defense and in- sanity; charge to the jury-On trial un- der an indictment for murder where the defendant pleads not guilty and not guilty by reason of insanity. and the two issues are submitted and tried at the same time, charge is erroneous and properly re- fused which instructs the jury that If the jury believe from the evidence that the defendant committed the act under circumstances which would be criminal or unlawful if he was sane. the verdict should be not guilty, if the killing was an offspring or product Of mental dis ease in the defendant"
 1S. Same; self-defense; charge to the jury.-On trial lnder an indictment for