The Montgomery advertiser., 1903-05-05
WHITE V. THE STATE.

Indictment for Murder.-Appeal from the City Court of Gadsden.
 1. Trial and it's incidents: service of
 copy of indictment on prisoner; when when no 10 indicted for murder. 1t furnishes no ground for objection to his being put up- on his trial, that in the copy of the in dictment served upon him. as required oy the statute, the name of the person ai- legged to have been killed was stated to be Jack Gorden. alias John Gorden. which in the original indictment the name of the person alleged to have been kilieo , Gordon" the names 'Gorden'' and GOT don being idem sonans. and therefore not constituting variance.
 2. Organization of jury in capital case; upon defendant their residences does not authorize quashing of venire.- .-The fact that on the list of Jurors served upon the defendant in capital case the residences of the persons constituting the venire drawn for such case. are not given, fur nishes no ground for quashing the venire; and this is true. although the slips drawn from the jury box containing the names of the jurors drawn did state their resi- dences.
 3. Competency of child as witness.-The admissibiity of children as witnesses de- pends not merely upon their possessing a competent degree of understanding. but also in part upon their having received such a degree of religious instruction as not to be Ignorant of the nature of an
 oath. or of the consequences of faise- hood,
 {. Same; when child shown to be com petent. When a child is introduced as a witness, and upon his examination voir dire he testifies that he is going on IF Sunday School. nor to church; that the , bad man will get boys who do wrong, and that a boy who swore lie would
 be hung. and that boy ought to tell
 the truth. and in answer to q question | Christi" such witness is shown to be competent, and the court commits no er- | TOT in allowing him to testify. B. Same; when witness shown to be in- competent.-On the examination voir dire of a child of tender years. who is shown | to be less than IF years of age. he testi- | hed that he did not know how old he was
 had never been to Sunday School or church; did not know who made him. | that ''the bad man would get bad boys | when they died, did not know what be- | came of good boys. that 1t was wrong to | tell a lie. that no one had ever told him
 about God or Jesus Christ; had never
 heard anything about heaven. did not
 know anything about boys being put in | jail for swearing to lies. nor what ought
 to be done to such boys. did not know
 what was being done when he held up
 his hand to take the oath, and in answer | to a question as to who made hipn, he
 testified The Lord" Held: Such wit ness Is shown to be incompetent, and the
 court errs in admitting the witness to tes- tify.
 6. AdmissibiIity in evidence of expert
 testimony. trial under an indict-
 nnent for murder, witness who was on
 the coroner.s jury and held the inquest | over the body of the deceased, and who is
 not shown to have been an expert. Is not
 competent to testify as to how long the
 deceased had been dead when he. the wit | ness, saw him.
 '. Trial and it's incidents; improper arr | gument of attorney.-Where an attorney | for the defendant in his argument to the jury states that the defendants position
 was that he did not do the killing, and
 was not at the house of the deceased on | the night of the killing, and that recog- nizing that 1t was possible for the jury not to be entirely satisfied with such ev- | instruct the jury with regard to the ef-
 feet of drunkenness upon the question of the degree of the homicide,' the soiici- tor for the State in his closing argument transcends the limits of legitimate argu- | ment when. in response to such statement | of defendants counsel, he says: Counsel | for the defendant recognized the weak | ness of the defendants case. Who is a | better judge of his clients guilt or in | nocence than the counsel representing
 him? Counsel knew that under this evi-
 dence he could not maintain the inno- cence of his client else why did he ask | the court to charge the jury upon the law of drunkenness as 1t affects the de-
 gree of homicide? It was an admission
 on his part that he knew his client was
 guilty"
 Reversed and remanded.
 l OOinfou hy D0yydali