The Montgomery advertiser., 1906-10-23
Head Notes ef the Decisions
 @ Alabama Supreme Court
UNTREINOR V. THE STATE. Murder-(Decided May 17th, 1906.-4

l UNTREINOR V. THE STATE.
 Murder--(Decided May 17th. 1s06.-4t So. Rep. 2S5).
 l 1. Indictment: Motion to Quasn, IGrand Jury: Organization-The lac-
 that the jury commission drew moie
 names on the grand jury venire than lrcQuired by law. did rot invalidate the
 indictment, although the last three
 names drawn or the venire appeared
 in the organization of the grand jur,.
 when it further appeared that on ac- lccunt of non- attendance tnd ex x;uses,
 nc greater number was organized as
 the grand jury than is allowed by law.
 Sections 1897, t269.
 l 2. Jury; Selection-It was not inl-
 proper. in selecting a jury to :ry Il icapital case, for the judge to caii
 drawn from the hat. before qualifying
 any of them. and. after swearing eacr
 of them, asked each the qualifying
 questions and permit them all to ap-
 swer at one and the same time. 1 3. Criminal Law; Trial; List of Tales
 men; Delivery to Defendant-When the lvcnire drawn to try capital case is ijury. the defendant is not entitled to the lis: of talesmen summoned to com-
 plete the jury as provided by Section
 5r09. Cole 1896. l 1. Jury; Names; Variance: Effect -
 A variance in the middle Icitial of the
 names of certain jurors constitutes nc lgrounds for challenge or for discard ing them.
 l 5. Same-Thc fact that there was d
 Variance in the name of a Juror drawn from the hat and one upon the venliH served upon the defendant constituted Inc grounds for discarding such Juror The addition of the word "Jr.' does not constitute a variance. | G. Same; Qualification; Capital Pun ishment; Prejudice-A juror. on his vo.r dire, stated that he was opposed
 to capital punishment: and the court court sustained d challenge for :ause. Held. mot error. though juror stated he would hang some men. Section 501S, Codr 1S96
 '. Homicid., Evidence-Defendant returned to his place of business and found his brother absent. He heaio This brother say that deceased had gun on him. and immediately went t'
 his bother's aid, and taking up his brothers cause, the fatal encounter O;
 cured At the time defendant return
 ed his brother and deceased were eh- gagged In an altercation. Held, thai | the difficulty between deceased and de
 fcndants brother and defendant were
 not separate and distinct difficulties and that defendant was entitled 10 sho"
 what transpered at such difficulty also l his brothers age, and whether or not
 he was fire. from fault in bringing on
 the diffcultyl
 l s. Criminal law: Trial; Curing Er' Ircr-where evidence was excluded, bdt Afterwards it was admittad as .esti-
 mony, such subsequen: admission cured the former error.
 g. Witness; Cross Examination os l t-L tc
 nit the solicitor, on cross examination.
 to ask the accused as to his movements
 after the killing, for the purpose oi
 showing flight.
 l 10. Homicide; Evidence; Materiality I-Evidence as to who handed the gun
 to defendant after the difficulty ana after deceased mad been killed was I'm
 material and irrevelant.
 H. Same; Self Defense the court excluded evidence of the dfm- cuity between deceased and defend ls nt's brother, and confined the testl-
 mony to the difficulty between deceased and defendant there was no evidence or
 self defense and charges on self-de fcnse were abstract and properly IT,
 fused. | 12. Same; Instructions-A requested IT, structjon properly defined manslaugh- ter in the first degree. and then con Itained the clause, and manslaughtef
 committed under any other circum-
 stances Is manslaughter In the secoEo
 degree" Held, the last clause rem
 dered the charge abstract. and its re- Ifusal was not error. . | I3. Same; Appeal: Instructions:
 Harmless Error-Where a defendant is convicted of murder in the second de- gree. this is an acquital of the highei degree, and the refusal of instructor" Irelative to murder In the Irst degree Tiff error, Is without injury.
 | IA. Same; Instructions: Malice-An | fir struction that If the killing was witn-
 out malice the defendant could not DC
 guilty of a higher grade of ottense than manslaughter in the first desree. and in 1 the absence of malice the defendant
 could not be guilty of murder in either degree, was proper and its retusai
 error.
 | IS. Same. Instructions; Punishment LA requested instruo ton correcting
 stating the punishment of manslaugh-
 ter in the first degree as to the term | of imprisonment in the penitentiary, but
 aCding. "or by hard labor for the coui.-
 ty for not more than two years nor Hess than a year and a dav.' was rem
 dered bad by the quoted clause; as the Iirry is authorized to sentence to haid labor for a term of twelve months Tor
 manslaughter In the first degree l l6. Criminal AdW' CASeP'AOhS tOral Charge; Form-An exception to the ioral charge of the court "severally and
 SC pa rately to each distinct part of tlfe
 courts general charge, and especially
 to the charge on the weight of the evi- Idence and especially to the charge set
 ting forth the punishment of p1an- slaughter in the first degree" is
 mere general exception to the charge i of the cour tas a whole, and not avail able, unless the whole charge Is bad. | IT. Same; tructions-Chargcs
 that if the jury do not believe the evi. Idence they must not find for the State.
 or must find for the defendant are properly refused is. same: Instructions; Weight 'f Eyidence-An instruction asserting that the jury had the right to believe or not to believe the evidence, and that | inc court cannot tell the!r what to believe, and what weight they must
 give to the evidence. is erroneous an1 l its refusal not error.
 | l9 Same; Abstract Charges-Where | there Is no evidence JustifJing yer Idlct of manslauGhter In the second de l. gree charges as to that grade of homi- lrlde are abstract and properly refused | Appeal from Monroe Circuit Court. Heard before Hon. John l. Lackland. | Reversed and remanded. Opinion by Weakley c. J., Haralson and Denson. | JJ., concur.
 | SOUTH & NORTH ALA, R. R. Co., vs. ALA. GREAT SOUTHERN R. R. COMPANY