The Montgomery advertiser., 1905-09-23
HeAd-Notes ef the Decisions
 of Alabama Supreme Court

judge ascertained before the oreani. zation that the grand jurors possessed the legal qualifications to serve. 1. Indictment in capital case uuashed on defendants motion and a new one found. another venire necessary Where an indictment in a capital cass 1 is quashed on motion of the defendant ana new one found at the same term under which the defendant was ar- raiKned, 1t is proper for the judge to draw another yenire, and the defend ant cannot complain because the trial 5udge did not put upon him the ve- nire drawn previous to the return of the second indictment.
 D. Venire in capital case quashed be- cause list served upon defendant con- tains name of juror not summoned Where before entering upon the trial the defendant moved to quash the ve- nire because no copy was served upon him or his counsel as required by law, and 1t appeared that the copy so served on the defendant contained the name or regular juror for the week who had not been summoned. the motion to quash should have been sustained. s. Evidence; examination of wit ness.--where a witness had been ex- amined by the defendant on cross-ex- animation and an effort was made to contradict or impeach him by showing that he failed to divulge facts upon another examination that he was then narrating, it is permissible on rebuttal for him to explain why the facts were not disclosed then and why divulged on the second trial
 T. Same.-A witness may testify to the habit or custom of another that he usually carried his bill-book in his inside breast pocket"
 S. Same.-Where the States theory Is that the defendant killed deceased in order to get certain papers which he held against him and which were in the bill-book carried by deceased, the fact that the book was found in the road near the place where the killing oc- cured was relevant.
 3. Same: cross- s-examination of wit ness.-Where it appears from the re- cord that testimony was brought on cross-examination of witness and objected to by the defendant. no injury resulted to the defendant as the tes- tfmony may have been in response to defendant's question.
 10. Same: admissibility of evidence of motive.-Where the evidence showed that the deceased had a mort sage on the crop of the defendant, and that the mortgage was in a bill-book carried by the deceased when he was killed, the fact that defendant had been selling or trying to sell property conveyed in said mortgage is a circum- stance to increase his motive or desire to get the mortgage from deceased. and is, therefore, admissible in evil denee.
 II. same.-The hat worn by deceas- ed at the time of his death is properly admitted in evidence.
 12. Same; voluntary statement by de- fendant.-Where a witness testified that the defendant made statement to him. not as a confession but as an ex- planatory statement to the witness, and the record does not show that 1t was made in response to any question propounded by the witness. such ev- idence is properly admitted,
 IS. Same.-The evidence of the gait in which the defendant walked away from the scene of the crime was prop erly excluded as the opinion of the wit ness, and that 1t was permitting the defendant By his own speed of loco motion to make eVidence for fimselfi
 14. ArgumentatiRe charges are prop erly refused.
 Is. Charge in criminal case; good character.-A requested instruction in a prosecution for murder that If the defendant has proved a good character as a man of peace, the law says that such good character may be sufficient to create reasonable douht of his guilt, although ,ne such doubt would have existed but Tor such character Is properly refused. ...
 IS. Same.-In such a case a charge is properly refused which singles out and gives undue prominence to one phase of the case. .--s
 IT. Same.-In such a case a request ed instruction that the evidence of a motive on the part of a defendant to take the life of the deceased, while ad missible for the consideration of the jury, yet, 1t Is testimony of a weak and inconclusive characteristic jury should be guarded as to the importance they attach to such evidence. is mis- leading and the jury might infer there from that the court also held that the evidence was weak and insufficient.
 IS. Same; reasonable doubt.-In such a case requested instruction that reasonable doubt Is such as arises not only from evidence offered to the jury which tends to prove the defendants innocence, but may also arise from the absence of sufficiently strong and convincing evidence before the jury tending to prove his guilt, Is mtslead- ing and properly refused.
 19. Same.-In such a case a request ed instruction that the absence of suf- ficiently satisfying evidence before the jury may afford ground for reasonable doubt of the defendants guilt is good, and should have been given.
 Reversed and remanded.
 Opinion by Anderson, J.