
    Lewis, Alias, Etc. v. The State.
    
      Indictment for Assault with Intent to Murder.
    
    1. Jury; organized identity of, when not impeached. — When, on the trial of a defendant on a criminal charge the court directed one of the jurors to leave the jury hox after the trial was entered on, and he thereupon stood aside in the court room under the eye and in the presence of the court, and on objection being immediately made by the defendant, he was directed by the court to resume his place among the jurors, and as a member of the jury, he was not discharged from the jury, nor was its organized identity impeached.
    2. Same; defendant cannot complain if discharged at Ms instance. — When the jury is discharged and a venire de novo ordered at the instance of the defendant in a criminal cause, he cannot complain of the action of the court in this regard.
    
      3.Charge; affirmative not proper when. — The defendant in a criminal case is not entitled to the affirmative charge when a tendency of the evidence goes to prove the averments of the indictment.
    
      4.When objection to question too late. — If the question, “did the defendant ever assault you,” is asked of the prosecutor in a criminal trial and is answered without being objected to, an objection then made comes too late; especially if it appears that the defendant was palpably not prejudiced by the question.
    
      5.Reasonable doubt; charge on properly refused. — The defendant in a criminal trial asked the court to give the following charge: “The defendant is charged with the offense of asault with intent to murder and unless each and every one of the jury is satisfied of his guilt to a moral certainty and beyond all reasonable doubt, then you cannot convict this defendant, and if you do convict the defendant without each and every one of you being so Satisfied, then :you violate your oaths and disregard the instructions óf the court.” Held, this charge was properly refused, because calculated to impress the mind of a juror that he must reach a conclusion without delibera- , tion with his fellows, and because of -its pendency to mislead the jury that they must find for the .higher offense5- charged or acquit, and because it tends to make every juror the keeper of the conscience of every other juror..
    Appeal from the City Court of Montgomery.
    Tried before tire Hon.' A. D. Sanee.
    Lorenzo Lewis was indicted for assault with intent to murder ,and was convicted of assault and battery. Tbe defendant pleaded former jeopardy in two special pleas; tbe facts stated in tbe first of which are sufficiently set out in the opinion. ■ The second of these pleas merely stated that after issue had been joined on the indictment in the pending case in a former trial, and after a witness had been examined, the court, without request of the defendant, excused one of the jurymen and caused him to stand aside because he stated that he was a member of the jury on the former trial, and instructed the sheriff to bring another juryman. To this plea the solicitor replied, setting out the additional facts of. the recall of the excused juryman to the jury box before he had left the presence of the court, and on objection to his discharge being made by the defendant; and also setting out the further facts that the second juryman was excused and the whole jury discharged and a venire de novo ordered at the instance of the defendant. The demurrer interposed by the defendant to the replication to the second plea was overruled. The court gave to the State the affirmative charge on the issue of jeopardy vel non.
    
    Hill & Hill, for appellant.
    Charles G-. Bbown, Attorney-General, for the State,
    cited Am. Eng. Eney. of Lato, Yol. 2, Sec. 21; Kendall v. State, 65 Ala. 492; Morrisette v. State, 77 Ala. 71; Gross v. State, 23 So. Rep. 734; Cunningham v. State, 117 Ala. 59; Pickens v. State, 115 Ala. 42.
   ", ’ MoOLELLAN/ 0:; .J.-

— Coiistruiug tbe first plea of 'former jeopardy ‘ihbst strongly against tbe defendant, it shows only thatjlie juryman,' Oliambless, was directed d>y. tbe court. to, leave tbe jury box, that he thereupon Stood aside, in the court room under tbe eye and in tbe '^presence'of the court, that immediately thereupon tbe ■defendant objected to bis'being taken off the jury and jtiie congt thereupon immediately directed and caused liim .tig resume bis place among tbe jurors and as a member .of tile 'jury.' Clearly upon this state of facts this 'juror ivas never discharged from tbe jury and tbe jury as a body was not discharged, or its organized identity 'jínpéatíb'ed: And''when, upon another juror making known .to' the court that he,' .too, as well as Chambless, 'bad'been a juror on a former trial of’ this case, tbe jury Hvas discharged and 'a venire de novo' ordered, tbe action was taken at'the instance of the defendant, and it will not avail him now. Kendall v. State, 65 Ala. 492; Morrisette v. State, 77 Ala. 71. The rulings of the court in sustaining a demurrer to the first plea, in overruling tbe demurrer to the replication to tbe second plea, and in giving tbe affirmative charge for the State on the issue of jeopardy vel'non as presented by tbe second plea and tbe replication thereto — tbe facts being admitted — were therefore free .from error.

A tendency of tbe evidence went strongly to prove tbe ‘averments of thé indictment, at least to tbe extent o'f ''showing an assault and battery. ' The time and venue '■'were proved. Of course, therefore, defendant was not ' entitled to tbe affirmative charge.

t . The defendant, requested tbe court to give the following charge: “The defendants charged with tbe offense . of an assault with .intent to murder, and unless each .’ and.every one of the jury .is satisfied of his guilt to a moral certainty and beyond- all reasonable doubt, then <.you cannot convict this defendant, and if you do convict ■ this defendant without each' and every one of you being ; so satisfied then -you violate' your oaths and diregard tbe ■'instructions of the court.” This charge was properly refused. One vice infecting it is pointed out in the case of Cunningham v. State, 117. Ala. 59, 66-7: “It is calculated to impress tbe mind Of a juror with the idea that bis yerdict must be reached and adhered to without the qjfiof that consideration and deliberation with his fellow jurors, which the law intends shall take place in the jury room.” Another infirmity is the tendency of the charge to mislead the jury to the conclusion that they should either find the defendant guilty of an assault with intent to murder, or acquit him, when it was open to them to find him guilty of an assault and battery. And, again, it tends to make every juror the keeper of every other juror’s conscience, and to forbid each juror to favor a verdict of guilt because forsooth another juror may have a reasonable doubt.

Defendant was palpably not prejudiced by the question to the person alleged to have been assaulted: “Did the defendant ever assault you?” Moreover, his objection to the question was not seasonable; it should have been made before the question was answered.

Affirmed.  