The Montgomery advertiser., 1903-08-30
JARVIS V. STATE.

JARVIS V. STATE.
 Indictment for rder.-Appeai rom
 City Court of Mobile.
 1. Organi zation of jury; trial of cap ital case; competency of juror as affect- ed by opini pn as to guilt or innocence or defendant tIn the organization of petit jury for the trial of a capital case. one of the persions whose name was drawn, upon his examination voir diere as to whether he thad a fixed opinion as to the guilt or inn ocence of the defendant, which would bias his verdict. the court by way of information asked him If the evidence should be different on the trial from what he ha d heard about the case, would the opinioii that. he had influence his mind in coming to a verdict, or could ne lay that opinion aside and be governed by the ev tdence adduced on the trial without ref. .rence to the opinion, and fur ther asked if after this explanation he had a fixed opinion. Upon the jurors an swering tha tt he had, the court asked 1t "the opiniols is determined entirely upon the evidenc A?" and to this the juror re- piled, "I whl try the case entirely upon the eviden,ss. n~AH Held: That the state ment of the juror that he, would try the case entirely upon the evidence made him compeJseht.
 2. Same; same; when finding of trial court set aside.-The question as to whether person drawn as juror on the trial oil capital case, has such a fixed opinion as to the guilt or innocence of the defeihdant as would bias his yer dict, is one of mixed law and fact TOT the determipation of the trial court, and this court on appeal shall not set aside the findingst of the trial court upon the question, unless 1t affirmatively proves that in the answers of the juror taken as a whole he entertains fixed opinion which wou Id bias his verdict
 3. Same: right of solicitor to examine iuror on ypir diere.-While the general rule prevailing in this State Is thar pe- fore challenge neither party has rsnt to examine juror on his voir diere. 70 ascertain whether he Is subject 10 chai. lenge. vet the court in the exercise or it's discretion may permit such examina- ton, and when permitted the exercise or the discretion on the part of the court is not revESable on appeal.
 4. Same; same.--When 8 person drawn as a juror on the trial of capital case, during his examination voir diere. as to his competency as juror, states tnat he would iaot convict on circumstantial evidence in capital case, IL IS pernis- sible for the court to allow the solicitor for the State to ask such juror. Are you opposed to capital punishment!
 5. Same; court may exclude juror who at the time is sitting as juror in another case.-In the organization of petit jury for the triad of a capital case where the name of a juror is drawn who at the time is a member of jury that IS en- gagged in dtsliberating upon another case which jury had retired to the Jury room if is not erlsor for the court to refuse oe- fendant's request to send for said juror, who was on the trial of the other case
 6. Same; exemption of State troops from service as jurors.-A mempership in the Alateima National Guard IS, uh- der the statute an exemption from Jury duty, and wtlAen in the organization or a jury for the, trial of capital case one of the perscfls called as juror presents his commission as an oncer m tne Aia- sa., hama National Guard, it is not error Tor inc court. ltpon the membership of such nerson in the Alabama National Guard heinz shown, to excuse him from serV- ing as juror. ,,-,,.
 T Indictment for murder; admissibility of a diagram or map.-On trial uhoer an indictment for murder. a map or ala' gram of the place of the homicide Illus tratine the relative location of objects or 1,ositions o,t nersons inquired about on inc trial. if proved to be correct, Is ad- missible in evidences; and it Is of no con sequence that such diagram or map was made by the solicitor, or that us cor rectness wa not shown prior to it's ad- mission in evidence, provided its correct ness was subsequently, proved
 s. Indictnre mt for murder; admissloiilty of evidence-On a trial under an indict- ment for mu rder, where there was evil dence tendirtg to show that the deceased had seducedt a niece of the defendane wife and it was proved without conflct that the defendant possessed information Inf such seduction before going to see de- ceased at the, time of the homicide, the source from which the defendant ac- ouired his knowledge of the debauch or the girl is wholly immaterlal: erred in refusing to permit the defendant to prove that his wife had to,d him of the deceased's seduction or his niece sew eral days before the homl- c,de such error is without injury 10 the defendant. ..-,..
 Same; ss,me-The court has right to exclude Illegal evidence on US own motion at any time before the jury re- tires: while, If an illegal question Is pro- nounded to st witness and there IS no obiection to i- and the answer is respon- siyo the nart,y against whom 1t Is offered is not entitled to have the answer ex- cIuded. vet orl the other hand, the court commits no error in allowing a motion to exclude or in excluding sAch illegal evidence of it's own motion at any tune before the jury retires.
 10. Evidence: practice as to lntroduc- tion of eviden ce; what is revlsaole.-The order as to ths. introduction and examina- ton of witnes ses Is, to very great ex- tent. a matter of discretion for the court, and the court s action in allowing Wit ness for the prosecution to be examined as to new matter, after the close Of the defendants evidence, is not revisable, un- less it afirmHltIvely appears that some substantial ris ht of the defendant was thereby prejuciiced
 il. Trial and its incidents; permitting witness placed under the rule to testify after the viol9tion of the rule. within the discretion of the trial court.-It Is within the sound dis cretion of the trial court to permit a witrm,ss who, after having been put under the rule, remained in the court house during the examination of the other witnesses, to testify. and the exercise of this discretion is not revisable on appeal.
 12. Dying declarations; when admissi- ble.-when on who has been mortally
 wounded is informed by his attending physician that he would die and could not live but g. short time, upon asking
 the physician if he was absolutely be-