The Montgomery advertiser., 1905-02-23
CATER V. THE STATE.


 Indictment for Murder-Appeal from Circuit Court of Perry County. 1. Indictment; what constitutes cap tion thereof-The caption of an indict- <nent Is that entry upon the records of the court showing when and where the court was held who presided as judge. the venire, and who was summoned and sworn as grand jurors, and this general caption, which is a part of every indictment, though not required to be included in the copy served on the defendant in capital case, may be referred to to supply defect or cler- teal error contained in the special cap ton or heading at the commencement of any particular indictment.
 2. Organization of jury; failure to serve one of the persons named on special venire, no ground for quashing same-The fact that a person whose name is on the special venire drawn for the trial of a capital case, and served upon the defendant, is not Q citizen of the County or State, and therefore he was never summoned as a juror. constitutes no ground for quash- ing the venire.
 8. Homicide; drunkenness; burden of proof; charge of court to jury-On 8 trial under an indictment for murder, where the defendant interposed the defense that at the time of firing the fatal shot, he was so drunk as to be incapable of forming an intention to kill, and he introduced evidence tend ing to prove such fact, a charge is er- roneous and properly refused which in- structs the jury that the burden in this case is not on the defendant to show that he was incapable of forming an intention to kill. but the jury must believe from all the evidence in the case beyond a reasonable doubt that at the time of the killing of the de- ceased Whitehead, the defendant was capable of forming an intention to take human life. before they can find the defendant guilty of murder"
 {. Homicide; drunkenness as a de- fense.-In order for drunkenness to be a defense for the commission of mur- der, it is necessary for 1t to be shown that at the time of the homicide, the defendant was so drunk as to be mem tally incapable of forming the specific intent necessary to constitute the crime of murder. and when drunken ness Is relied upon as a defense for such crime, the burden of proof is up- On the defendant to show he was mem tally incapable at the time, by reason of his drunkenness, of forming such specific intent; but the law does not require that this mental tncapacity should be established by the defendant to the entire satisfaction of the jury, since 1t Is sufficient. if, after consid- ering all the evidence, the jury have a reasonable doubt as to whether the de- fendant was m sntally capable of form ing such specific intent.
 ,. Homicide; charge of court to jury; as to defendant seeing the per- son shot at.--On trial under an in. dictment for murder. where the evil dence shows that the defendant killed the deceased while shooting at another person, 1t is immaterial whether the i defendant saw such other person at whom he shot, if he fired at him with the intent to kill him.
 6. Defendants character; charge of court In reference thereto.-on a trial under an indictment for murder, where no evidence of the defendants charac- ter was introduced. a charge ls erron- eous which instruots the juryth the