
    McClellan v. The State.
    
      Indictment for Murdpr.
    
    1. Organization of jury in capital, case; when quéstion of variance 'can not he determined. — Where the defendant in a capital case moves to quash the venire upon the ground that there is a variance between the original list of jurors constituting-the special venire and the copy served upon the defendant, in that the occupation of the jurors was stated on the original venire and omitted from such copy, but neither of the lists is shown on appeal, it can not be affirmed that the court erred in denying the motion to quash.
    2. Same; failure to state occupation of juror not material. — The fact that on the list of jurors served upon the defendant in a capital case the occupation of the persons constituting the venire drawn for such case are not given, furnishes no ground for quashing the venire; and this is true, although such occupations may have been stated on the original venire.
    3. Homicide; charge as to self-defense. — On a trial under a. indictment for murder, a charge as to self-defense, which does not postulate that the circumstances surrounding the killing are such as to reasonably impress the defendant that he was in great and imminent peril, is erroneous and properly refused.
    4. Same; same. — On a trial under an indictment for murder, charges as to self-defense which do not hypothesize the defendant’s freedom from fault in bringing on the difficulty, are erroneous and properly refused.
    4. Same; charge as to good character. — On a trial under an indictment for murder, where there was evidence tending to show that the defendant had a good character, a charge is erroneous and properly refused which instructs the jury that “If the defendant, Jerry McClellan, has proved a good character as a man of peace, the law says that such good character may be sufficient to create or generate a reasonable doubt of his guilt, although no such doubt would have existed but for such good character.”
    5. Charges which are abstract and confusing are properly refused.
    Appeal from the City Court of Anniston.
    Tried before the Hon Thomas W. Coleman, Jr.
    The appellant in this case, Jerry McClellan, was indicted and tried for the murder of Forney Williams, was convicted of murder in the first degree, and sentenced to the penitentiary for life.
    The bill of exceptions contains the following recital as to the motion to quash the venire: “The defendant before entering upon the trial objected to going to trial, and moved the court to quash the venire on the ground that there was a variance between the original and the copy, which was served upon the defendant, in this, that the copy served did not show the occupation of the regular panel for the week, and the original showed the occupation of said jurors. The court overruled the objection and motion, and the defendant excepted.” This was all that was shown as to the original list of jurors, or the copy served on the defendant.
    There were several witnesses introduced on the part of the State, who testified that Forney Williams was killed at the residence of Jerry McClellan; that there was an entertainment at Jerry’s house, and upon his talking to another man and demanding that they stop swearing, the deceased, Forney Williams, walked up to the defendant and struck him twice in the face; that thereupon the deceased, Forney Williams,- walked out of the house into the yard, and the defendant walked into, an adjoining room, which was his bed room, and procured a gun, and that while the deceased, Forney Williams, was standing ten feet away talking to another man, the defendant fired upon said Williams and killed him; and that the deceased had his side turned to the defendant when the fatal shot was fired.
    The defendant, as a witness in his own behalf, testified that after being struck by the deceased he went into his room and that deceased followed him, and as he got near him he cursed him and threw his hands towards his pocket as if about to draw a pistol, and that the defendant thereupon shot him. The defendant also testified that about a year previous to the homicide the deceased had threatened to kill him, which threats were communicated to- the defendant.
    The defendant introduced several witnesses who testified to his general good character.
    Upon the introduction of all the evidence, the defendant requested the court to give to the jury the following written charges, and separately excepted to the court’s refusal to give each of them as asked: (1.) “The court charges the jury that if they believe that the defendant when he entered into his private room in his dwelling house, and that the deceased, Forney Williams, was advancing towards defendant standing in the door of his private room with the intention to do or commit great bodily harm on defendant, and that defendant believed he was in imminent peril, that in such case the defendant is exonerated from killing Forney Williams.” (2.) “The court charges the jury that if they believe from the evidence that there was an actual or impending danger to the defendant at the time of the shooting, or -such a state of facts as were justly calculated to impress upon his mind a reasonable belief of the necessity of taking life, and he acted thereon, they may acquit the defendant.” (3.) “The court charges the jury that if they believe from all the evidence that the circumstances surrounding, and> acts at the time of the killing, were such as to impress the mind of the defendant with the reasonable belief that he was in peril of great- bodily harm from the deceased, and that acting on such belief, he killed the deceased, they may acquit the defendant.” (4.) “The court charges the jury that if the defendant, Jerry-McClellan,- has proved' a good character as a man of peace, ■ the law -says that such good character may. be sufficient r to create or generate a reasonable doubt .of -his1 guilt, although no such, doubt would, have existed but for such good character/’; • (:5.) ■ /‘The court charges the jury that the law. does.not.require ,one'who,is assailed in his own dwelling to, .retreat therefrom,'but the'law permits him,- 'and; says- that .it is, his right, to1 stand his < ground and- kill'his .assailant if-it, is necessary, só> to> do, or-to, save ,h-is life or-¡to: protect : himself ,fcom. great bodily, harm,-'provided, he is.without (fault-in -bringing on the difficulty. And -in-.-this base the .Court charges - the' jury; that if they believe from the evidence that the .defendant was after entering-his dwelling,, or in the- ac t of entering his dwelling room, and that .the: .deceased so acted as, to create, in the-mind - of defendant reasonable belief that himself; ,0r ■ any/, member ■■ of. his ■ family. was in ■ danger ■ of • hislife, or sustaining great bodily-ha-rm.at.the hands of the deceased; .then the defendant under the- law had: a right .to-shoot deceased and take his life, if such shooting was necessary-to, .protect his own-life,-or-that of. any member .of-■ his- family--from sustaining;.great.. bodily harm at the hands of the deceased,,
    E. ED. Hanna and J.. H. Eino, ,for appellant,
    cited Fields w.- State-, 47 Ala>. 60S’; Brown ¡v-. State, .118 Ala-.Ill; 1 Mayfield’s ¡Dig. p; 174, § ,210'.: . i > t >*•>,;. .
    Massey ■ -Wilson, Attorney-¡General, for ,the State,
    .cited -Thompson v.- State', .122 , Ala.. 12-;. Benson-v,--State, 120 Ala.--316,; Eggleston v. State, 129 Ala.- 80,- - . .<>.• -
   McGLELLAN; C.' J;

-It-does.not appear,by this .record’either-that'the occupations-'of the jurors were-stated on -the -original, venire or-that- they :wer,e -not .stated on the.list-.serted oh'the defendant.,- I-f,.therefore,--the omission -from a-copy'served on defendant of such statement made-'Onrthe original would- constitute .a- variance..-for which: the venire should-be-quashed,-we -could-,yet-not affirm' that-the court-erred in "denying-the .-motion' to quash--made in this case-becafise .the -fact-alleged in the motion does not appear to have been proved. However, Such omission is not a material variance.-White v. State, 136 Ala. 58, 64-5.

Charge 1 requested by defendant was bad for that it did not postulate that the circumstances were such as to reasonably impress the defendant that he was in great and imminent peril.

This charge, moreover, and changes 2 and 3 were bad for omitting to hypothesize defendant’s freedom from fault in bringing on the difficulty.-Henson v. State, 120 Ala. 316.

Charge 4 was properly refused.-Eggleston v. State, 129 Ala. 80.

Charge 5 is abstract in one. or more of its postulates and it is confused in its terms.

Affirmed.  