majority">PELHAM, J.

The defendant was indicted and tried for murder in the first degree and convicted of murder in the second degree.

*49The fatal difficulty occurred at an entertainment or “party” of a public nature, given at the home of one Rowe, which was attended by the two daughters of the deceased. The defendant started to accompany the daughters of deceased from the place of entertainment to their home, when a difficulty arose between the father and the defendant, resulting in the fatal shooting of the former by the latter. While there is no positive evidence showing that the defendant ivas responsible for the daughters of the deceased going to the entertainment or dance in opposition to his wishes, it is manifest that the father held such a belief, and the difficulty started by the father’s offering objection to the defendant accompanying his daughters, or one of them, home from the dance. The evidence is in conflict as to practically all of the principal particulars relating to the difficulty resulting in the killing. The evidence of the state tends in general to show that, upon the father peaceably and quietly protesting against the defendant’s escorting his daughter home, the defendant persisted, and almost immediately, and without provocation, assaulted the father by shooting him with a pistol three times, inflicting a fatal wound from which death ensued in a few minutes. The evidence for the defense was to the effect that the deceased accused the defendant of surreptitiously taking his daughters, or being the cause of their going, to the dance, applied a vile epithet to defendant, and attacked him Avith a knife, backing him up against a fence, Avhereupon the defendant, in self-defense, shot the deceased.

The defendant being tried on an indictment charging murder in the first degree, it was necessary that the provisions of the jury law (Acts 1909, pp. 305, 317-319, § 32), applicable to a person on trial for a capital felony, be complied with. No order is shown -as required by the provisions, of section 32. The record recital is that, * * *

• 4 OA *50drew from said box the names of 65 persons to constitute a special venire for the trial of this cause.” But the order provided for by section 32 that the court must make, fixing the number of jurors, is not shown to have been made; and the provisions of this statute having been held by the Supreme Court to-be mandatory (Harris’ case, 172 Ala. 413, 55 South. 609; Jackson’s case, 171 Ala. 38, 55 South. 118, 120; Bailey’s case, 172 Ala. 418, 55 South. 601), and the objection of the defendant having been seasonably interposed, the court’s action in overruling the objection made to the venire by the defendant is, under the rulings of the Supreme Court in the cases above cited, error for which the case must be reversed.

Whether or not the court sufficiently inquired into the qualifications of the veniremen who appeared to satisfy the requirements of the statute, as against the specific objections made by the defendant, is questionable; but it is unnecessary to discuss the question, or the various rulings on the evidence and other objections arising on the trial, as the case must be reversed for the court’s error in failing to make the mandatory order required by the statute, definitely fixing the number of jurors; and, the case having been tried by a special judge, the same questions are not likely to occur on another trial.

That part of the oral charge excepted to, in which the court charged the jury that, “under self-defense, the law says certain things must be proven to you by all the evidence in the case to your satisfaction,” is clearly erroneous.

Written charge No. 22,-requested by the defendant and refused by the' court, is the same charge that, to refuse, has - been repeatedly held to be reversible error. These cases are collected and cited approvingly in the recent ease of Adams v. State, 175 Ala,, 57 South. 591.

*51Some of- the other refused charges are mere copies of charges that have been considered and passed upon by the Supreme Court and approved; but we do not deem that a further discussion of the case would serve any beneficial purpose, and it is unnecessary, as the errors pointed out necessarily require an order of reversal.

Reversed and remanded.

Citation profile

Relationships

How this case has been treated — in progress