
    Gibbs v. The State.
    
      Murder.
    
    (Decided February 4, 1913.
    60 South. 999.)
    1. Jury; Empanelling ; Judgment Entry. — The judgment entry relative to the drawing of the jury stated and held to affirmatively show that the special jurors were drawn as required by law by the judge in open court.
    2. Same; Venire; Objection; Necessity. — An objection to a'venire in a capital case that it contained names of jurors who had been excused 'by the court, or that the list served on defendant contained a name not on the venire must be interposed in the court below and cannot be raised for the first time on appeal.
    3. Same; IrreguliM'ity; Chvunds. — The fact that there was a mistake in the name of some of the jurors appearing on the list served on defendant or that the list served contained the name of a juror not ou the venire, was not good as a ground for a motion to quash the venire. Acts 1909, p. 320.
    4. Homicide; Accidental Killing; Instructions. — Charges which predicate the acquittal of a defendant on the theory of an acquittal killing should include in the predicate the fact that defendant was engaged in a lawful act in the exercise of due care, and with no intent to injure.
    Appeal from Henry Circuit Court.
    Heard before Hon. M. Sollie.
    Isaac Gibbs was convicted of murder in tbe second degree and be appeals.
    Affirmed.
    H. L. Martin, for appellant.
    It must affirmatively appear that the judge drew the jury in open court. — 145 Ala. 11; 160 Alá. 6; 115 Ala. 1. Counsel discusses other assignments of error, but without citation of authority.
    R. C. Brickell, Attorney General, and W. L. Martin, Assistant Attorney General, for the State.
    The manner of drawing and empanelling the jury in this case was not made the basis of an objection beloiv, and cannot be now raised. — Thomas v. State, 94 Ala. 74; Wil-
      
      Hams v. State, 81 Ala. 1. Tbe court properly denied charges requested. — Tickoell v. State, 70 Ala. 33; Holmes v. State, 88 Ala. 26.
   PELHAM, J.

Tbe defendant was charged with murder in tbe first degree, and was convicted of murder in tbe second degree. Tbe objection is here raised for tbe first time that tbe judge did not draw tbe names to constitute tbe special venire from tbe jury box in open court. Tbe point made is that it is not affirmatively shown by tbe judgment entry that this requirement of tbe statute was complied with.

Tbe judgment entry on that subject recites: “It is ordered that tbe judge of this court, in open court, draw from tbe jury box tbe names of 25 jurors, who, together with,” etc. Tbe judgment entry then further recites: “It is ordered that a list of tbe names of all tbe jurors summoned for this week of this court, and of those 25 jurors drawn hereunder by tbe judge of this court, together with,” etc. Tbe fair and reasonable reading of tbe entry is that tbe order of tbe court that tbe 25 jurors be drawn in open court bad been complied with; that “those 25 jurors” ordered drawn in open-court bad been so drawn in compliance with tbe order previously made that they should be drawn from the jury box in open court. We think it affirmatively appears that tbe special jurors were drawn as required by law by tbe judge in open court drawing the names of tbe 25 jurors from tbe jury box.

No objection was made before entering upon tbe trial to tbe venire because tbe list contained names of jurors who bad been excused by tbe court, or that tbe list served on tbe defendant contained a name not on tbe venire, and tbe objection to such irregularities comes too late when raised here after a verdict, judgment, and sentence in tbe court below. As said by tbe court in Thomas v. State, 94 Ala. 74, 10 South. 432: “Parties must not be permitted to speculate on tbe chances of a favorable verdict, and failing then, fall back on some preliminary ministerial error, not previously called to tbe attention of tbe court.” — See, also, Williams v. State, 81 Ala. 1, 1 South. 179, 69 Am. Rep. 133; Herndon v. State, 2 Ala. App. 118, 56 South. 85; Howard v. State, 108 Ala. 571; 18 South. 813.

The fact that there was a mistake in the name of some of the jurors appearing on the list of the venire, or that the list served on the defendant contained the name of a person not on the venire, would not be good grounds for a motion to quash the venire. — Acts 1909, p. 320; Sims v. State, 176 Ala. 18, 58 South. 379. See, also, Coates v. State, 1 Ala. App. 35, 56 South. 6.

The charges refused by the court predicating the defendant’s acquittal on the theory of an accidental shooting do not include in the predicate as' authorizing an acquittal on the ground that the defendant was engaged in a lawful act in the exercise of due care, and with no intént to injure. — Tidwell v. State, 70 Ala. 33; Holmes v. State, 88 Ala. 26, 7 South. 193, 16 Am. St. Rep. 17.

The record in the case as perfected by the return to the certiorari shows that the minutes of the trial court have been amended nunc pro tunc, and that as amended the record shows the venire to consist of the proper number of jurors as fixed by order of the court. The defendant having had a legal jury for the trial of his case, as shown by the return to the certiorari, and no other error being shown by the record, the case will be affirmed.

Affirmed.  