The Montgomery advertiser., 1902-05-06
JOHNSON V. THE STATE.

Indictment for murder.
 l. Organization of jury in capital case; quashing venire-When a special venire ordered in a criminal case, including the regular jurors drawn and summoned for the week of the trial. it is no objection
 to the special venire and constitutes no ground for quashing it. that the names of persons drawn to complete the panel of petit jurors for the week did not ap- pear upon the special venire served upon the defendant
 2. Homicide; charge to the jury.--On a trial for murder, where both the evil dence for the State and for the defendant prove that the homicide was committed by the defendant, charge requested by the defendant is erroneous and properly refused which instructs the jury that they must believe beyond a reasonable doubt and to a moral certainty. that the defendant is guilty as charged in the in- dictment, to the exclusion of every proba- bility of his innocence and every reasona- ble doubt of his guilt; and that If the prosecution has failed to furnish such measure of proof and to impress the jury with such belief of his guilt, they should find him not guilty"
 g. Same: same.-On trial under an indictment for murder, a charge is erro- neous and properly refused which ln- uCtS tHc Jury IT thO uCiChaoHe killed the deceased in the heat of passion aroused by sudden anger produced by the resistence of the boy to being chastised, then the killing would not be murder unless at the time of the shooting the deefndant was prompted by willful, in- tentional. malicious and premedltated de- sign to take the life of the deceased, and if every reasonable hypothesis of the in- nocence of the defendant is not broken down, the Wime of murder is not made out" indictment for murder, a charge Is erro- neous and property refused which in- structs the jury that If they believe from the evidence that the killing in the case was not malicious, then the defen- | dant would be guilty or murder in either | and that if the killing in this case was without malice. then the defendant would | not be guilty of a higher offense than in the first degree, and | that if after considering all the evidence the jury have a reasonable doubt of de- | fendant's guilt of manslaughter arising | out of any part of the evidence then they | should find the defendant not guilty Of any offense."
 B. Same; same.-On a trial under an indictment for murder a charge is er- roneous and properly refused which in- structs the jury that TT oefendant was moved by sudden anger or passion. pro- voked by his attempt to chastise his son. he deceased, the latter's resistance. to ire the gun, but that no malice entered nto it, then the defendant could not 'ightfully be convicted of murder
 6. Courts oral charge to Jury.--On a rial under an indictment for murder, where the court in it's oral charge to the ury correctly instructed the jury as to what constitutes murder in the first de- gree. further instructions to the jury that Murder in the second degree is the un awful and malicious killing of a human ,eing The distinction between the two degrees of murder is the absence in mur- Ter in the second degree of that delibera- ion and reconciliation required in mur- Ter In the first degree $
 Appeal frSm the Circuit Court of Shel- ,y.-Tried before the Hon. John Pelham
 Affirmed.
 Opinion by Sharpe, J.