
    Carwile v. The State.
    
      Murcler.
    
    (Decided April 18, 1905.
    39 So. Rep. 220.)
    1. Indictment; Quashing; Record; Duty of Cleric; Organization of the Grand Jury. — An indictment will not he quashed he* cause the clerk has failed to make a record of the organization of the grand jury at the time the motion to quash is made, although he had ample time to do so notwithstanding section 934, paragraph 8, Code 1896, requires him to keep a book on which to enter the minutes of the various proceedings, and section 2641 requires the reading of the minutes each morning in open court, provided, the organization of the grand jury is recorded before the court adjourns for the term.
    2. Criminal Law; Appeal; Presumption of the Regularity of the Proceed/ings.■ — On appeal this court may presume that the trial judge ascertained that the jurors possessed the necessary legal qualifications, before the organization of the jury, in the absence of proof to the contrary.
    3. Jury; Netv Indictment; Dranoing Special Venire. — The special ve-nire had been drawn for the trial of the defendant. After-wards, but on the same day, the indictment was quashed, and a new indictment preferred for the same offense; and the court proceeded to draw a new venire for .the trial of the cause. I-Ield, not error.
    4. Criminal Law; Trial; Service of Veivire on Defendant; Sufficiency. — Under section 5273, Code 1896, a copy of a venire containing the names of a person drawn as a regular juror but who had not been served is not sufficient, nor a compliance with said section.
    5. Jury; Venire; Quashing; Grounds. — The failure to comply with the requirements of section 5273 of the Code of 1896, is not cured by the provisions of section 4997 or 5007 of the Code.
    6. Criminal Law; Appeal; Harmless Error. — The service upon defendant under a charge of murder of 'the copy of the venire containing the name of a regular juror drawn but not summoned, under section 5273, is not such an error as is cured or covered by section 4333, Code 1896.
    
      7. "Witnesses; Impeachment; Explanations. — It is proper to permit the witness to explain why facts were not disclosed on a prior examination where such witness is. sought to be impeached by a showing that he failed to divulge the fact which he had then narrated, on his former examination.
    8. Homicide; Evidence; Admissibility. — It was permissible for the state to show by a witness who had knowledge of the facts, that decedent usually carried his bill book in his inside breast pocket, where the theory of the state was that the defendant killed deceased to get possession of certain papers which deceased held against him and which were in the bill book belonging to deceased.
    9. Same.' — It was permissible to show that defendant had been trying to sell the crop on which deceased held a mortgage, it having been previously shown that deceased had a mortgage on defendant’s crop, and the theory of the state being that deceased was killed in order to obtain the mortgage, which mortgage was produced by defendant with the explanation that he had paid it, when the coroners inquest was held.
    10. Criminal Lane; Appeal; Questions Revieioable; Witnesses; Ex- ■ animation. — Where the record shows that the statement of a witness was made on cross examination and it does not appear that it was not made in response to a question pro-ponded by the cross examiner, the defendant in this instance, objection to such statement is not available to defendant on api)eal.
    11. Criminal Law; Evidence; Declarations "by Accused. — The declaration by defendant, voluntarily made to his brother, although in the custody of the arresting officer, that the killing was accidental, is admissible, not as a confession, but in explanation of his conduct.
    12. Same; Opinion. — A witness may not testify that one was following the buggy of another ‘“in a gait in which a man would ordinarily follow a runaway team,” the same being an opinion.
    13. Same; Instruction. — An instruction asserting that the evidence of a verbal admission by defendant must be weighed with caution because subject to mistake from accused’s failure to clearly express himself, and of witnesses failing to understand and their liability to alter expressions used, is argumentative and properly refused.
    14. Same; Instructions; Good Character. — An instruction asserting that proof of good character may create a reasonable doubt ■ of guilt, though no such doubt would exist but for such proof, is properly refused.
    15. Same; Argumentative Instructions. — An instruction asserting that accused had the right to carry aims and he did no wrong in carrying the same, if the evidence fails to disclose that he' was carrying arms for an offensive purpose, is argumentative and properly refused.
    16. Same; Reasonable Doubt. — An instruction that a reasonable doubt is such as arises, not only from evidence offered tending to prove defendant’s innocence, but may also arise from the absence of evidence proving guilt, is misleading as calculated to mislead the jury to the conclusion that any evidence tending to show innocence would be sufficient to create a reasonable doubt and is properly refused.
    17. Same. — A charge asserting that the absence of satisfying evidence before the jury may offer ground for reasonable doubt is a proper charge and its refusal error.
    18. Same. — Instructions that the law is as fully vindicated in the acquittal of the defendant not proven guilty beyond a reasonable doubt as it is in the conviction of one thus shown to be guilty, and that the jury has as fully discharged its duty when they acquit where guilt is not proven beyond a reasonable doubt as where they convict when guilt is so proven, are misleading and properly refused.
    19. Homicide; Instructions; Motive. — An instruction that the failure of the state to prove a motive on accused’s part calculated to prompt him to take deceased’s' life, considered in the light of the evidence, is a circumstance in defendant’s favor, gives un- ■ due prominence to one phase of the evidence and is properly refused.
    20. Same. — A charge asserting that while evidence of a motive to kill decedent is admissible, it is of an inconclusive character, is calculated to lead the jury to infer that the court thought such evidence insufficient and is properly refused.
    Appeal from Marshall Circuit Court.
    Heard before Hon. James A. Bilbiio.
    E. Monroe Carwile was convicted of murder,in the first degree. At the trial a list of fifty persons were drawn as a special venire. On the day this venire was drawn the indictment against the defendant was quashed and a new indictment was preferred for the same offense, and thereupon the court proceeded to draw a list of different persons from those drawn on the first venire, for the trial under the new indictment. To this proceeding the defendant objected and reserved exceptions to the action of the court. The facts concerning the motion to quash the venire, and the trial court’s action thereon sufficiently appear in tbe opinion of tbe coart. Tbe deceased came to bis death as a result of a gun shot wound in tbe bead. Tbe evidence for tbe state tended to sliow that deceased bad a mortgage on defendant’s property and that be bad gone over to defendant’s bouse that morning for tbe purpose of removing the crop when defendant asked him to take him to a certain' point where be thought be could get tbe money to pay tlie mortgage. Defendant and deceased left defendant’s in deceased’s bugy and sometime on tbe way a gun shot was beard and in a few minutes tlie buggy came up tbe road with deceased’s body in it, which fell out before the horses were stopped. It was shown that defendant bad a gun Avith him and tbe gun was found standing by a tree on the roadside. Deceased’s papers Aveie found scattered around tbe roadside, but the mortgage was not among tlie papers. Defendant produced the mortgage at the coroner’s inquest Avith the explanation that be liad paid the mortgage and it liad been turned over to him. One Amos testified that be arrested tbe defendant on instructions from tbe coroner and while in bis custody defendant asked to be carried to bis brother at a certain barber shop where be found bis brother and engaged in a conversation with him; that during this conversation defendant told bis brother of the killing, mentioned tbe mortgage AvbiCb be bad produced at tbe coroner’s inquest and stated that the killing was accidental. It Avas also shown that no threats or inducements were offered or held out to tbe defendant prior to tbe conversation and that the officer did not engage in the conversation. It was shown over the objection of tbe defendant that tbe defendant bad endeavored to sell tbe corn covered by tbe mortgage1. It was also shoAvn that deceased bad a bill book in Avhich be kept his papers and that it was bis custom to carry this book in his inside coat pocket. Tbe defendant offered to show by a witness that Avhen tbe Avitness first saw defendant on tbe morning of tbe killing tbe defendant was folloAving the buggy of tlie deceased “in a gait in which a man would ordinarily folloAV a runaway team. Tbe court declined to allow this testimony. Tbe other facts sufficiently appear in tbe opinion. Tbe court refused to the defend: ant the-following written instructions: (l)-Tlie court charges the jury that, in considering the evidence of statements'made by the defendant, they will do it in the light of facts that it is the repitition of oral statements, that such testimony is subject to much infirmity and mistake, that men often fail to express clearly what they mean, that the witness often fails to understand correctly what the party actually did say, and that the witness often unintentionally alters some of the expressions of the party. (2) The court charges the jury that evidence of verbal admissions by a person charged with a crime is to he received and weighed by the jury with great caution. This evidence, consisting of repitition of oral statements, is subject to much imperfection and mistake. The party himself may have been misinformed, or may not have clearly expressed his own meaning, or the witness may have misunderstood. It frequently also happens that the witness unintentionally altering a few expressions really used, gives an effect to the statement completely at variance with what the party did actually say. (3) The court charges the jury that if the defendant had proved a good character as a man of peace the law says that such good character may be sufficient to create a reasonable doubt of his guilt, although no such doubt would have existed but for such character. (4) The court charges the jury that if the state has failed to prove a motive on the part of the defendant to kill Snow reasonably calculated to prompt him to take Snow’s life, then this is a circumstance in the defendant’s favor to be considered in the light of all the evidence in the case. (5) The court-charges the jury that evidence of a motive on the part of the defendant to take the life of the deceased, Avliile admissible for the consideration of the jury, yet, it is'testimony of a weak and inconclusive character. The jury should be guarded as to the importance they attach' to such evidence. (6) The court charges the jury that under the laws of this country the defendant had the right to ’ carry arms, and if the evidence fails to show that he was carrying it on the day Snow was killed for an offensive purpose, then he did no wrong in carrying the gun. (7) A reasonable doubt is such as arises not only from the evidence offered to the jury which tends to prove the defendant’s innocence but may also arise from the absence of sufficiently strong and convincing evidence before the jury tending to prove his guilt. (8) The absence of sufficient satisfying evidence before the jury may offer ground for reasonable doubt of the defendant’s guilt. (9) The court charges the jury that-the law finds as full and complete vindication in the acquittal of a defendant not proved beyond a reasonable doubt to be guilty, as it does in the conviction of one shdwn to be guilty beyond a reasonable doubt. (10) The court charges the jury that their duty is as fully discharged when they acquit a man whose guilt is not proven beyond a reasonable doubt as it is when they convict a man whose guilt is shown by that measure of proof.
    The defendant was convicted and sentenced to imprisonment for ninety-nine years.
    Street & Isbell, for appellant.
    Massey Wilson, Attorney General, for the State.
   ANDERSON, J.

— The defendant moved to quash the indictment because the record did not show an organization of the grand jury. Court had been in session several days and the clerk had ample time to have written up the organization of the grand jury and the judge ought to have required him to do so. Paragraph 8 of section 934 of the Code of 1896 says it is the duty of the clerk “To keep a book, in which must be entered, .the minutes of each day’s proceedings during the term of the court, and the orders and judgments, in the order in which they are made or rendered.” Section 2641 says, “The minutes of the court must be read each morning in open court, and, on the adjournment of the court, must be signed by the judge.” The law certainly contemplates that the clerk shall write up the proceedings of each day and read the minutes the next morning in open court in order that the judge can .determine the correctness of the entries. This action is directed by law and a compliance therewith tends to keep down disorder and confusion and prevents a congestion Avhen the time for adjournment arrives. It is no hardship on the clerk as the minutes must he written up in the end and it is just as well to record the proceedings daily as the law directs. There are clerks Avho write the minutes of each day and read the same in open court the next morning, and it is the writer’s experience that it is a safeguard against errors and irregularities. This court has held, however, that section 2641 is directory, and a failure to sign the minutes does not effect the validity of the judgment or decree.—Bartlett v. Long, 2 Ala. 161; Frazier v. Prayton, 36 Ala. 691.

It appears from the record in the ease at bar, that this case was tried at the term the indictment was found and though the organization of the grand jury was not recorded at the time the motion Ayas made, that it Avas written up before the court adjourned for the term. It is settled law that the judgments of the court are under the full power of the court during the term of the rendition.—Neal v. Caldwell, 3 Stewart, 134; 3 Mayfield’s Dig. p. 1160, § 675. It follows that the court had judicial knoAvledge, or in fact actual knowledge of its orders and judgments rendered during the term and it was sufficient if the entries Avere made before the court adjourned. —15 Ency. Pl. & Pr. 205-6- and cases cited.

Another ground of the motion Avas that one of .the grand jurors, Hunt, Avas a resident of another county. There was no proof of this averment and Ave can presume that the judge ascertained that the grand jurors possessed the legal qualifications to serve, before organization. But the presumption is needless in this case as the bill of exceptions recites the fact.

After the first indictment Avas quashed and the defendant was arraigned under the neAV one, the action of the judge Avas eminently correct in draAving another venire. We do not think the defendant can complain because the trial judge did not put upon him a venire that AAras draAvn out of the box previous to the return of the indictment under which he was tried.

The defendant before entering upon the trial moved to quash the venire, because no copy Avas served on him or his counsel as required by law, and becaues the copy served on Mm Avas not a copy of tbe venire to try tbe case; because it contained tbe name of one D. M. Beeves as a regular juror and tbe said Beeves Avas not summoned. It was admitted that said Beeves Avas on tbe list served on tbe defendant; that be was draAvn as a regular juror to serve the week this cause wag set for trial, but that be .Avas never summoned. This case was set for a day of •the succeeding week and under tbe statute, tbe venire drawn by tbe judge and tbe regular jurors drawn and summoned constituted tbe venire to try tbe case.—§ 5005 of Code of 1896. Section 5276 requires that “a copy of tbe venire to try tbe case” be served on tbe defendant or bis counsel, etc. It is plain that no such copy was served. Tbe juror Beeves not being summoned should not have been on the list and a paper containing bis name Avas in no sense a copy of tbe venire to try tbe case. And tbe appearance of one of many names that do not belong thereon or tbe omission of names that do •deprive tbe paper served of being a copy as required by law. Section 4997 of tbe Code of 1896, Avhich provides that, “no objection can be taken to any venire facias for a petit jury except for fraud in drawing or summoning tbe jurors,” has no application to this question. Tbe objection was not aimed at tbe venire facias but at a failure to serve a copy of tbe venire as required by laAV. Nor does the provision of section 5007, that “a mistake in tbe name of any person summoned as a juror, either in the venire or in tbe list of jurors delivered to tbe defendant; is sufficient cause to quash,” have any application to this question! Tbe motion complains of no mistake in tbe name of any juror but says a name -was served on him that should not have been so served. We cannot say that this was error without injury under section 4333 of. tbe Code of 1896. As tbe defendant should not have been put to trial until a copy of tbe ve-nire was served on him, the trial court erred'in not sustaining tbe motion to quash the venire. — Ryan v. State, 100 Ala. 105, 14 South. 766; Burton v. State, 107 Ala. 108, 18 South. 284; Thomas v. State., 94 Ala. 74, 10 South. 432.

Tbe. trial court did not err in overruling defendant’s objection to witness Wright, “How came you to tell me about tliis conversation.” The witness had been examined by the defendant on cross-examination and an effort Avas made to contradict or impeach him, by shoAv-ing that he failed to divulge facts upon another examination that he was then narrating and it Avas perfectly legitimate for him to explain why the facts were not disclosed then and -why divulged on the second trial. As a rule, witnesses, cannot testify to their intent, reasons or motives, but- there is an exception to the rule to the effect that when his impeachment is attempted by contradictory statements, acts' and conduct, he may in rebuttal explain, and may be asked Avhy lie made certain statements.—Williams v. State, 123 Ala. 39, 26 South. 521.

Defendant objected to the evidence of McCluskey, “Deceased usually carried his bill book in his inside breast pocket.” This court seems to have become committed to the proposition that a witness can testify to the habit or custom of another.—Naugher v. State, 116 Ala. 463, 23 South. 26; Wiley v. State, 99 Ala. 146, 13 South. 424. This is true when such custom or habit is known to the witness testifying.

The state’s theory was that the defendant killed deceased in order to get certain papers he held against him and which were in the bill book referred to, and that said book was found in the road and that it must have been extracted from the pocket of the deceased, and was therefore relevant.

The defendant also objected to testimony of Avitness McCluskey,. “I don’t remember ever seeing Snow carry his bill book in his overcoat pocket.” The record sIioavs that this was said upon cross-examination, and so far as we knoAV many have been in response to defendant’s question.—Tolliver v. State, 94 Ala. 111, 10 South. 428.

The court did not err in overruling the defendant’s objection to evidence of witness Holiday and Washburn as to buying corn from defendant. The. evidence showed that the deceased had a mortgage on his crop, that said mortgage was in the bill-book aDd the fact that defendant had been selling or trying to sell the corn, was a circumstance to increase his motive or desire to get the mortgage from the deceased.

There was no error in admitting the ha.t in evidence.

The evidence of the witness Amos was properly admitted. The statement ivas made by the defendant, not as a confession but as an explanatory statement to his bother. The witness Amos testified it was voluntary and the record does not show that it ivas made in response to any question propounded by the said Amos. On the other hand the defendant’s, brother was with them and the defendant, had been taken to the barber shop by Amos at his request in order that he might talk with his brother.—Jones v. State, 137 Ala. 12, 34 South. 381; Christian v. State, 133 Ala. 109, 33 South. 64; White v. State 133 Ala. 122, 32 South. 139.

The court did not err in excluding the evidence of witness Price, that defendant was following Snow’s buggy, “in a gait in which a man would ordinarily follow a runaway team.” In the first place it was the mere opinion of the witness. Second, It was permitting the defendant by his own speed of locomotion to make evidence for himself.—Pate v. State, 94 Ala. 14, 10 South. 665.

Charge. 2 was-argumentative- and was properly refused, as was the case with charge 1. Charge 3 lias often been condemned.—Eggleton v. State, 129 Ala. 129, 30 South. 582. Charge 4 was properly refused. It singles out and gives undue prominence to one phase of the case. Charge 5 Avas bad.. It Avas misleading ,and the jury might infer therefrom, that the court was holding that the evidence was Ayeak and insufficient, and it was not the duty of the court to pass upon the weight and sufficiency of the evidence. Charge 6 was árgumentativ'e. Charge’7 Avas bad. It tends to mislead the jury to the conclusion that any evidence, tending to show innocence' would be sufficient to create a reasonable doubt of guilt. Charge 8 was good and should have been given. Charges 9 and 10 were argumentative and were properly refused.

Reversed and remanded.'

McClellan, C. J., Tyson and' Simpson, JJ., concur.  