The Montgomery advertiser., 1903-04-29
SMITH V. THE STATE.

SMITH V. THE STATE.
 Indictment for murder.-Appeal from the
 Circuit Court of Limestone.
 1. Organization of jury in capital case; what constitutes venire to be served on defendant.--When a day set for the same week in which the special jurors are drawn, the special juries so drawn. together with the panel of petit jurors organized for the week constitutes the venirc from which the jury to try such case shall be selected Code. Section 5O0o); and, therefore. constitutes the venire, a copy of which, together with copy Of the indictment must be served on the de. fendant or on his counsel at least one entire day before the day set for his trial anG h such case, persons who, though they were drawn as jurors for that week. were summoned at the time the juries were being organized to supply | the places of persons who had been drawn and for good reason had been ex- cused from attendance by the court. con stitute in part the regular jturies organ, | ized for the week and should be included | in the venire served upon the defendant. 2. Same; same: construction of order | of the court.-When the day set for the trial of a capital case is a day of the | same week for which the special jury 1 was drawn. and in tho first part Of the courts order relating to the service oI | the special venire upon the defendant, 1t is recited that the special jurors so draw wn and summoned. together with the petit jurors drawn and empannelled Tor | this week of the court should constitute special venire. and in the latter part o1 | the order it is directed that the Sher1fi should serve copy of the list of special jurors together with copy Of the reg ular petit jurors organized for this week % | of the court" the word drawn employ | ed by the court in the first part or the or | der. was used in the sense or seiected;
 and such order of the court authorizes including in the list served upon the de- | fanda nj tho flames of nprSOnS who were
 put upon the regular juries for the week 1 to supply a deficiency In the regular Ju- ries for that week.
 1 3. Evidence; dying declarations.-ln a trial under an indictment for murder where it is shown that a short time after | the deceased was shot. which occurred at 10 o'clock at night he stated ne did not think he would live till morning. and that he was going to die, and that ne
 wanted to leave a statement of the facts" a sufficient predicate Is laid for the introduction in evidence as gyms relating to the killing as made by him. | 4. Evidence; admissibility of evidence as against one who was present aidine | and abetting in the homicide On trla
 under an indictment for murder, where | from the evidence introduced u was
 open to the jury to find that the defend-
 ant was present aiding and abetting m | the killing of the deceased. although he did not fire the fatal shot. nor was en- | gagged in the altercation, all that occur red between the deceased and the per
 sons who fired the fatal shot and were | and admissible in evidence against tht defendant, and likewise declarations made by the defendant during the evening o the fatal difficulty in the nature o threats and tending to show q pre-con ceived intention on his part to have the difficulty, are admissible in evidence.
 5. Appeals; when charge requested bJ defendant will not be reviewed.-W her' if is stated in the bill of exceptions tha
 ''the defendant requested the genera charge which the court refused to give.
 and that defendant excepted to thii
 charge but no charge of any sort is se out in the bill of exceptions, the cour
 on appeal will not review the action O
 the court in refusing to give the charge
 referred to.
 | Affirmed.