The Montgomery advertiser., 1903-06-30

the defendant the character "&" is used in the place of "and'' between "unlaw- fully and with malice" constitutes no ground for quashing the venire; the common use for the word and and be- fng understood to be identical in mean ing.
 2. Organization of jury; when motfon to quash properly overruled.-The fact that he given name of one of the regular jurors set for the week of the trial Of capital case, and who was upon the special venire served upon the defendant was written Dove" and in the list serv- ed on the defendant the name was writ ten Dave" constitutets no ground for Quashing the venire; and especially is this true. when upon the trial of the motion to quash. the proof shows that there was no person having such sur name, whose given name was Dove residing in the county of the trial.
 3. Same: same.--where one of the per- sons drawn as one of the regular jurors for the week set for the trial of a capital case was under 21 years of age, the fact that the court excused him on that ac- count and he was, therefore, not upon the list of the special venire served upon the defendant in said capital case con- stitutes no ground for quashing the venire.
 l. Indictment for murder; admissibili- ty of evidence-On a trial under an in- dictment for murder, where a witness testified that a short time before the killing the defendant asked him where the deceased was and stated to him that he was going to kill him that night or the next morning, it is competent for the defendant on the cross-examination of said witness, to ask him. If you were such good friend of Wills 0he deceas- ed) why did you not go and tell Will Jim (the defendant) was going to kill him?" there being no evidence that the witness was a good friend of the deceased. nor . that he did not tell the deceased of the threat of the defendant.
 5. Same; same-On a trial under an in dictment for murder, where the evidence for the State tended to show that after a quarrel between the dfendant and the deceased about a debt which the defen- dant claimed the deceased owed him de- ceased walked away some distance and then the defendant took deliberate aim at him and shot and killed him. and the evidence for the defendant tended to show that when the deceased was shot he was very near to him the defendant struck him with a pistol which was accssentally discharged and inicted the fatal wound. it is competent for the State in rebuttal i to introduce witnesses and ask them ' 1 clothes of the deceased.
 6. Charge of court to jury; clerk | misprision.-Where in a charge to the | jury the word "purposed" Is used, but | 1t clearly appears from the context that | the word intended to be used was ''pur- posely." the use of the word proposed ! will be regarded and treated by the court | as clearical nisprision and self-correc- | tive mistake in copying the charge, and \ fha rharOn xxyttt ha tra ted ff o,-d purposely had been used.
 !. Indictment for murder; charge oi | court to Jury.-On a trial under an in dictment for murder a charge asserts a | correct proposition and Is free from error. which instructs the jury that 'it | they believe beyond a reasonable doubt from the evidence in the case that the defendant in Wilcox County Alabama | and before the finding of this indictment purposely killed Will Mims by shooting him with a pistol. with wickedness ol depravity of heart toward said deceased | and the Killing was determined on be- fore hand. and after reflection (for how | ever short time before the shooting wa: done, is immateriaD then the defendant Is, guilty of murder in the first degree.
 g. Same; same-On a trial under ar indictment for murder. a charge is erro neous and properly refused which in l structs the jury that If they have reasonable doubt as to the defendant. guilt growing out of any part of the evi dence they must find the defendant no guilty" such charge predicating an ac lQuital on a part of the evidence.
 g. Same; charge as to self-defense.- On a trial under an indictment for mur der. a charge as to self-defense whicl iignores the question of apparent dange and the duty to retreat is erroneous ana properly refused.
 10. Homicide; charge as to accident On trial under an indictment for mur der. where the evidence for the Stat
 tended to show that the killing was don
 deliberately and premeditatedly, and tn
 evidence for the defendant tended t,
 show that as the deceased approaches
 near the defendant. the latter strucl
 him with a pistol which was accidentall. discharged inflicting 6 fatal wound If tn defendant was at fault in striking tn
 deceased Intentionally with the pisto
 and it accidentally went off and kille,
 the deceased, the defendant could not b
 acquitted. as he might have been foun,
 guilty of manslaughter; and in such
 case a charge Is erroneous and properl
 refused which instructs the jury that 1
 the deceased went 10 defendant in al
 attacking manner and was not provoke
 by the defendant, and the defendan
 struck at him with a pistol and the pisto
 went off and killed the deceased acci
 dentally then the jury should acquit tn
 defendant.
 Il. Charges properly refused-Charge
 which are argumentative or single ou
 and lay stress upon a portion of the evi
 dence are properly refused
 F. Judgment; presumption in refer
 ence thereto-The fact that the judgmen
 in a criminal case does not show tha
 the jury was charged by the court a
 to the law of the case. constitutes n
 reversible error; 1t being presumed tha the trial court did its duty in thi respect
 13. Verdict sufficiency to sustai
 judgment.-On a trial under an indict
 ment for murder a verdict that we
 the jury find the defendant guilty 0
 murder in the first degree and sentenc
 him to death by hanging" Is sufficiel'
 to sustain a judgment of conviction an
 sentence to death.
 Affirmed.
 Opinion by Haralson, J.
 | ROBINSON V. STARNES.