Henderson v. State

• Decision Date: 02 May 1893
• Parties: HENDERSON v. STATE.
• Court: Alabama Supreme Court

13 So. 146

98 Ala. 35

HENDERSON v. STATE.

Supreme Court of Alabama

May 2, 1893

Appeal from city court of Mobile; O. J. Semmes, Judge.

Wilson Henderson was indicted and tried for murder, and convicted of manslaughter in the first degree, and sentenced to hard labor for the county for two years. He appeals. Affirmed.

The evidence tended to show that the accused and the deceased were two colored boys, between whom no hostility existed that the shooting was in a barber shop, in which the deceased was employed, and where the prisoner was in the habit of going; that no one else was in the shop at the time of the shooting but the deceased and the accused; that the shooting was done with an old double-barreled gun, which was not the property of the accused, but was kept in the barber shop in which the deceased was employed. One Lewis Avendorf, a witness for the state, and who was the first person accused was shown to have spoken to after the shooting, testified that when he (Avendorf) came to where the defendant was immediately after the shooting, he asked him about the shooting, and defendant answered: "I took up the gun and it went off. My God, I would not have done it for anything on earth." The defendant testified in his own behalf that "he and deceased were 'skylarking' in front of the barber shop, and deceased went in to get a pistol, and he went in and got the gun; that he held it pointed towards deceased as he went to get the pistol." The evidence further tended to show that the deceased went to the washstand to get a pistol, and that as he turned around the gun accidentally went off and killed the deceased. The charge asked by the defendant, to the refusal to give which he duly excepted, is copied in the opinion.

John R & Chas. W. Tompkins, for appellant.

Wm. L. Martin, Atty. Gen., for the State.

COLEMAN J.

The defendant was indicted and tried for murder, and convicted of manslaughter in the first degree, and sentenced to hard labor for the county for a period of two years. The order of the court was that "a copy of the indictment and a list of the jurors be served upon the defendant one entire day before the trial." The bill of exceptions shows that defendant was on bail. It was entirely competent for the sheriff to serve a copy of the defendant's counsel, notwithstanding the order directed that it should be served on the defendant. Service on either was a sufficient compliance with the statute. Code, § 4449. ^[1] When the case was called for trial the defendant moved to quash the venire upon the grounds that the caption to the list of jurors was, "Special Jury in Case of Milton Henderson," when in fact the defendant was named Wilson Henderson. On this motion is was shown that the list of jurors served on the counsel for defendant contained the names of the persons drawn and summoned under the order of the court to try the case against the defendant. It was not necessary that the list should have any caption. It was sufficient if the list was correct, and the defendant or his counsel were served with a copy, and informed by the sheriff that the list composed the special venire drawn and summoned in his case. It was entirely competent to strike out the caption, or to amend it at any time. Kenan v. State, 73 Ala. 15. It was further shown that neither the defendant nor his counsel made any objection at the time of the service, or at any time demanded a copy of the venire. We cannot see how the defendant was misled or injured or deprived of any legal right. We hold there was no error in overruling the motion to quash the venire.

When the name of the juror Roddy was drawn, the sheriff announced "over age," and proceeded to draw another name etc. The venire was exhausted before a jury was obtained. Defendant's counsel then objected to the action of the sheriff in regard to the juror Roddy. The court proposed to have the juror called again, but defendant's counsel stated that the ground of his objection was "that he was entitled to be served with competent jurors." The sheriff has no discretion in the matter. The statute provides how the names of the jurors are to be drawn, and it is the duty of the sheriff to serve a list of those only who are drawn as prescribed by the statute. A juror over age may be challenged for cause. Code, § 4331. If the fact of...