The Montgomery advertiser., 1906-11-29
Head Notes of the Decisions
 Of Alabama Supreme Court

iais were H. c. K. Held. not to consti- rute q variance.
 f. Same; allegation and proof-The indictment charges, in the first count, the emhezzlement of fifty dollars, law fuI money of the United States of Amer ica"f and in the second count Money to the amount of fifty dollars" There was no proof of the kind of money laid in the first count, and no allegation or proof that the property laid in the sec ond count was of any value. Held, fa- tai to a judgment of conviction, and to entitle defendant to the affirmative charge.
 B. Embezzlements venue; jury ques- tion--Where the proof showed that the money was delivered to defendant in the county of 0. to be deposited in a bank in the county of T. and part of such money was deposited in said bank, the trial court could not say, as q matter of law. that the embszzlement occurred in the county of C.
 G. Same: common carrier--The fact that defendant was accustomed to car ". money for prosecutor from prosecu- tors place of business to a bank in an- other town for denosit. for which pros- ecutor paid defendant did not consti- ute defendant a common carrier. and such a a'carrier was properly refused.
 Appeal from Coosa Circuit Court Heard before Hon. A. Fl. Alston.
 reversed and Remanded. Opinion by
 weakiev, c. J.. Haralson and Denson, u. concur a
 wALKFR V. THE STATE.
 Murder--( (Decided July 9th, 1906. Al
 So. Rep. sTs).
 l. Criminal law: preliminary pro- ceedings; jury list: service.--Where the special venire was drawn on a daN of the first week of the court and the capital case set for day of the sub
 sequent week, an order by the court
 directing the sheriff to serve list of the jurors drawn and summoned for this week of the present term. together with q list of the special venire. upon the defendant. was not in compliance with the requirements of Section 5OO5 Code Isss. and was erroneous. g. Same; persons not summoned. .---It was error to include within the list of regular jurors for the week of the trial served upon defendant. the names of jurors drawn. but not summoned for that week.
 8. Same: declarations of deceased person; materiaiity.-The fact that the deceased asked a witness. after the wounds had been inflicted. if witness Knew WutNflGE AAA6 hNtSiO NAAN Ns' NA"N wagon, the defendant. was married or single, was immaterial, and not admis- sible.
 4. sanAe; dying declarations; res gestae.---The proper predicate having been laid it was proper to permit proof of what the deceased said as to how and in what manner the assault was
 made and the fatal wounds inflicted. 5. Same; evidence; mental capacity. A person not shown to be an expert may testify as to whether or. not de- ceased was conscious at the time of her statement.
 6. Jury: qualification; opinion.--The l jurors stated that they had fixed opinion as to the guilt or innocence of l inc defendant that would bias their verdict, and in reply to defendants counsel. stated that it would take evt- dence to remove their opinion. but further stated that they would try the | case according to the evidence. Held; { That they were competent. and not
 subject to challenge for cause by de- fendant.
 7 Grand jury; number.-The num- | ber of grand jurors being reduced be- low fifteen. the court properly com pleted the panel as required by Sec ! tion 502S,. Cole 1896. and 1t was lm- | material that the panel was increased ] beyond fifteen in number.