Garth v. State

• Decision Date: 15 May 1913
• Citation: 8 Ala.App. 23,62 So. 383
• Parties: GARTH v. STATE.
• Court: Alabama Court of Appeals

62 So. 383

8 Ala.App. 23

GARTH v. STATE.

Court of Appeals of Alabama

May 15, 1913

Appeal from Law and Equity Court, Morgan County; Thomas W. Wert Judge.

Wince Garth was convicted of murder in the second degree, and he appeals. Affirmed.

The charges referred to are as follows:

"(2) If you believe the undisputed evidence in this case, I charge you that the defendant acted in self-defense in striking Jim Bowman with a stick.

"(3) I charge you that the law does not imply or presume that defendant had malice towards the deceased from the fact that defendant struck deceased with a stick, but in determining whether or not malice existed in the mind of defendant or not you must look to all facts and circumstances in this case; and, if after a careful consideration of all the facts and circumstances in the case you believe the defendant acted in self-defense in using the stick to prevent real or apparent danger to his life or limb, you should acquit the defendant."

Kyle &amp Hutson, of Decatur, for appellant.

R.C. Brickell, Atty. Gen., and W.L. Martin, Asst. Atty. Gen., for the State.

PELHAM, J.

It was not a ground to quash the venire that the name of "Sam C. Bolding" appeared as "J. Sam Bolding" on the venire and on the list served on the defendant. A mistake in the name of the juror is not sufficient cause to quash the venire. Acts 1909, § 32, p. 320; Longmire v. State, 130 Ala. 66, 30 So. 413. The juror Sam C. Bolding received the subpoena, and appeared and was shown to be the person intended for service as a juror who was drawn and put upon the venire as "J. Sam Bolding." The initials "J" or "C" appearing either before or after "Sam," the name distinguishing the juror would not render the venire subject to being quashed under the facts in this case, nor would the defendant be prejudiced on account of the name appearing thus on the list from which he was required to strike.

The jurors challenged for cause by the state, who upon their voir dire examination by the court stated that they would convict on circumstantial evidence but would not impose capital punishment on such evidence, were disqualified under the statute, and the court was not in error in allowing the challenge for cause. Parker v. State, 60 So. 995; Jackson v. State, 74 Ala. 26; Griffin v. State, 90 Ala. 596, 8 So. 670.

There were inferences that could be drawn from the evidence upon which the jury was authorized to find a...