majority">MAYFIELD, J.

Defendant was indicted, tried, and convicted of murder, and sentenced to death, at a special term of the circuit court of Bibb county, which term was ordered by the judge of the circuit court, under section 3249 of the Code. The order for the special term, and the drawing and organizing of the grand and petit juries, seems to have been in strict accordance with the provisions of the statute — all of which orders were properly entered upon the minutes of the court. The judge, in open court, drew from the jury bos the names of a sufficient number to constitute the juries for such term, and directed the issue of all proper venires. These were properly issued and returned, and the juries were organized in all things as required by the statute. All these requisites appear of record upon the minutes of the court. — Holland’s Case, 162 Ala. 5, 50 South. 215.

No notice or publication of the order or time of holding such special term is now required, as was the case under the Code of 1896, as was decided by this court in McMillan’s Case, 39 South. 569. The organization was held void in that case for want of proper notice ; this court saying that the court was organized under the Lusk bill, which required no notice, but that, as *51that enactment had been declared unconstitutional, tbe organization bad to rest upon the provisions of tbe Code of 1896 (sections 914, 915) AVkich required the notice.

Since that decision, and before tbe organization of this special term, tbe Lusk bill (with some amendments) has been re-enacted, and noAv forms a part of the Code of 1907 (section 3294 et seq.) Tbe Statutes uoav require no such notice or publication as was formerly required, so this special term was held at a time, at tbe place, and in tbe manner prescribed by law.

Section 3252 of tbe. Code, which provides that “all cases pending in said court at tbe time said order is made, shall, if at issue, be triable at any time after five days from tbe making of such order,” clearly has no application to this case, Avkick was not pending, and was not at issue, but no indictment bad been found. Tbe indictment was found and returned, and tbe defendant Avas first arraigned at this special term.

As to whether the accused bad sufficient time in which to prepare for this trial depended upon tbe particular facts of bis case, and tbe question rested primarily within tbe discretion of tbe trial court, and did not depend upon this or any other statute.

It is not made to appear that tbe discretion of tbe trial court was abused, in putting tbe accused to trial before tbe five days bad elapsed.

Tbe statutes in question clearly contemplate that trials may be bad at such special term, on indictments.

There was shown no reason Avky tbe trial should be postponed until a court stenographer could be appointed. While tbe statute at that time provided for court stenographers, it appears of record in this case that one was not appointed for this circuit, for tbe reason that one fitted for the position could not be bad in this circuit at tbe compensation fixed by the statute. Tbe court *52was not called upon to delay or stop the proceedings in order to obtain a suitable stenographer.

We know of no laAV that disqualifies a butcher from serving on a grand jury merely because of his occupation. .It is insisted by appellant that the constant taking of life — the shedding of the blood of animals, with its sight and smell — for 17 years, renders a man incompetent to serve as a petit juror in the trial of a capital case. This may be so, but we do not judicially knoAV it. There is nothing in the record to show that this particular juror, McCulley, challenged solely for this cause, was inclined or likely to take the life or blood of a felIoav man, merely because he was experienced and an expert in taking the blood and lives of the lotver animals in the due.course of trade and business. The court properly overruled this challenge for cause.

If this was ever a ground for challenge at English common Iuav, as is claimed by appellant, it is certain that it has never prevailed and has never been exercised in this state, by statute, or as part of the common law.

The court properly refused the requested charges of defendant.

The evidence was sufficient to authorize a conviction of murder, in the first degree. Hence charge 2 was properly refused.

It aaus a question of fact for the jury, and not one of la.AV for the court, as to Avhether the deceased or the accused provoked the difficulty. For this reason charges 4 and 5 were bad.

Charge 13 does not assert a correct proposition of law, when applied to all cases.

A killing under facts hypothesized might be murder, depending upon other circumstances, or it might be manslaughter. As applied to the facts in this case, said charge was misleading.

*53We find no error in the record, and tlie judgment of the circuit court must be affirmed.

Affirmed.

Dowdell, O. J., and Andeeson and Sayee, JJ., concur.

Citation profile

Relationships

How this case has been treated — in progress