Appeal from Montgomery City Court.

Heard before Hon. W. H. Thomas.

Wade Hampton Hunter was convicted of murder in the second degree, and appeals.

Before going to trial, and before announcing ready for trial, defendant filed a motion to quash the venire, and also filed objections to being put on trial. The motion to quash and the objections to going to trial are based upon the following agreed statement of facts. The name of W. E. Price is drawn from the jury box as a special juror in this cause, and he was summoned as a juror by the sheriff. His name was not put upon the venire, but instead thereof the name of W. E. Pearce. The name drawn from the jury box was W. E. Price, beat 15, Montgomery county.. The sheriff returned the name of W. E. Pearce as executed having served the same on W. E. Price, who reported to the court on Monday of that same week of court, and was discharged by the clerk of the court without the order of the court, or tlie knowledge of the court, although he was actually summoned as a juror and did appear as such. It was further adjmitted that pn Wednesday, November 27, 1907, another venire was served on the defendant, containing the name W. E. Price. It was further admitted that no order was made to summons W. E. Price until November 27, 1907, but that the sheriff had served the summons on W. E. Price before that day. It was further admitted that on Wednesday, when the mistake was discovered by the court, the court then ordered the clerk to issue a summons for this man W. E. Price, and that the sheriff resummons him, and that a new venire be served on defendant, which was done; this new venire consisting of the same one which was first served on defendant, with the exception that W. E. Price whs substituted for W. E. Pearce, and that Price was resummoned.

J. S. Childs, testifying for the state, said that he knew Thomas Summerall, the man alleged to have been killed; that he did not know him personally, but that he had seen him several times; and that he knew the defendant about the same as he knew Summerall. He was then asked the following question: “Yon were not, then, on intimate terms with either one of them, Mr. Hunter or Summerall?” The court overruled an objection to this question, and permitted the witness to answer.

The defendant, testifying for himself, stated that he had some business for Mr. Trentham, an order from him for some money. His attorney then asked him the following question: “To leave town on?” to which an objection was sustained, and also the following question: “Who did you get the order from?” Defendant was also asked what the crowd did right after the shooting, to which objection was sustained.

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