The Montgomery advertiser., 1905-01-16
CATER V. THE STATE.

GATEh V. THE STATE.
 indictment for Murder-Appeal from
 the Circuit Court of Perry County.
 1. Indictment; what constitutes cap tion thereof.--The caption of an indiot- ment 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 sum moned and sworn as grand jurors, and this is a part of every indictment, though not required to be included in the copy served on the defendant in a capital case, may be referred to to sup ply a defect or clerical error contained in the special caption or heading at the commencement of any particular indictment.
 2. Organization of jury: failure to serve one of the persons named on spe- cial venire, no ground for quashing same.--The fact that person whose name Is on the special venire drawn for the trial of capital case. and served upon the defendant. Is not a 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 a trial under an indictment for mur- der. 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, 0 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 form ing 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 deceased Whitehead, the defendant was capable of forming an intention to take human life, before they can find the defendant guilty of murder"
 4. Homicide: drunkenness as de- fense-In order for drunkenness to be a defense for the commission of mur- der 1t is necessary for 1t to be shown that at the time of the homicide, the defendant was so drunk as to be ment- ally incapable of forming the specific intent necessary to constitute the crime of murder, and when drunkenness is relied upon as defense for such crime, the burden of proof is upon the defendant to show he was mentally in- capable at the time. by reason of his drunkenness, of forming such specific intent; but the law does not require that this mental incapacity should be established by the defendant to the en- tire satisfaction of the, jury, since 1t is sufficient, if. after considering all the evidence, the jury have a reason able doubt as to whether the defendant was mentally capable of forming such specific intent.
 5. Homicide; charge of court to jury; as to defendant seeing the person shot at.-On a trial under an indict- ment for murder. where the evidence shows that the defendant killed the deceased while shooting at another per- son, it is immateTlal whether the de- fendant saw such other person at whom he shot. If he fired at him with the in- tent 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 char acter was introduced, charge is er- roueous which instructs the jury that the law presumes the defendants char acter to be good until the evidence shows it to be otherwise. since there ia no presumption in the absence of evidence that it was either good or bad.
 Affirmed.
 opinion by Tyson. Jr.