
    Henderson v. The State.
    
      Indictment for Murder.
    
    1. Service of list of jurors upon defendant ■ — An order that “a copy of the indictment, and a list of the jurors be served upon the defendant one entire day before the trial,” is sufficiently executed by service upon defendant’s counsel.
    2. Misnomer of defendant in caption of list, not ground for quashing venhe. — A motion to quash the renirr, because the name of the defendant is misstated in the caption to the list of jurors served upon him, is properly overruled.
    3 Duty of sheriff in drawing jurors —The sheriff has no discretion in drawing the names of jurors'; and, it is his duty to serve a list of these only, upon the defendant, which are drawn according to the statute. He may set aside the name drawn of a juror “over age,” and proceed to draw another.
    4. Misleading charge. — Where the evidence shows that the defendant pointed a gun at the deceased, a charge that, “If the jury entertain a reasonable doubt, growing out of the evidence, whether or not the shooting was accidental, they must acquit,” is misleading, and properly refused.
    5. Inconsistent sections of Code. — §§ 3733 and 4492 are not consistent. It has been finally settled that the latter section (4492) controls.
    Feom tbe City Court of Mobile.
    Tried before tbe Hon. O. J. Semmes.
    
      Jiro. R. & Chas. W. Tompkins, for appellant,
    cited Code of Ala. § 4449 ; Const, of Ala. Art. 1, Sec. 7; Driscoll’s Gase, 45 Ala. 21; §§ 3733, 4492 of Code of Ala.; Graves v. Hannon, 59 Ala. 510.
    Wm. U. Maetin, Attorney-General, for the State,
    cited Aticen v. State, 35 Ala. 399; Kenan v. State, 73 Ala. 15; Johnson v. State, 94 Ala. 35; Code of Ala. § 4449; Ih. § 4331; subdivision 8; Gibson v. Slate, 89 Ala. 121; Acts.1888-9, p. 67; Gunter v. State, 83 Ala. 96; Zaner v. State, 90 Ala. 653.
   COLEMAN, J.

The defendant was indicted and tried for murder and convicted of manslaughter in the first degree, and sentenced to hard labor for the county for a period of two years. The order of the court was that “a copy of the indictment, and a list of the jurors be served upon the defendant, one entire day before the trial.” The bill of exceptions shows that defendant was on bail. It was entirely competent for the sheriff to serve a copy on the defendant’s counsel, notwithstanding the order directed that it should be served on the defendant. Service on either was a sufficient compliance with the statute. — Code 449.

When the case was called for trial, the defendant moved to quash the venire -upon the grounds that the caption to the list of jurors was “Special Jury in case of Milton Henderson” when, in fact, the defendant was named Wilson Henderson. On this motion it was shown that the list of jurors served on the counsel for- defendant contained the names of the persons drawn and summoned under the order of the court, to try the case against the defendant. It was not necessary that the list should have any caption. It was sufficient, if the list was correct, and the defendant, or his counsel, were served with a copy, and informed by the sheriff that the list composed the special venire, drawn and summoned in his case. It was entirely competent to strike out the caption, or to amend it at any time.—Kenan v. The State, 73 Ala. 15.

It was further shown, that neither the defendant nor -bis counsel, made any objection at the time of the service or at any time demanded a copy of the venire. We can not see how the defendant was misled or injured or deprived of any legal right. We hold there was no error in overruling the motion to quash the venire.

When the name of the juror Roddy was drawn, the sheriff announced “over age,” and proceeded to draw another name, &c. The venire was exhausted before a jury was ob-tamed. Defendant’s counsel then objected to the action of the sheriff in regard to the juror Noddy. The court proposed te hare the juror called again, but defendant’s counsel stated that the ground of his objection was “that he was entitled to be served with competent jurors.” The sheriff has no discretion in the matter. The statute provides how the names of the jurors are to be drawn, and it is the duty of the sheriff to serve a list of those only who are drawn as prescribed by the statute. A juror over age may be challenged for cause. — Code, § 4331. If the fact of his being-over age is contested, the statute provides that the court shall direct how his age may be proven. — Code, § 4332. There is no merit in this objection.

The defendant asked the court to charge the jury as follows: “If the jury entertain a reasonable doubt, growing out of the evidence, whether or not the shooting was accidental, they must acquit.” This charge was refused. The charge was misleading, and under the evidence in the case ought not to have been given. Leaving out of view other evidence in the case, the testimony of the defendant himself is, that “he held it (the gun) pointed at the deceased as he went to get the pistol.” Now if the defendant pointed the gun at the deceased, and it was accidentally discharged, or if defendant believed it was not loaded, it was an unlawful act, a misdemeanor made so by statute. A person who causes the death of another under such circumstance is not wholly free from guilt, and a charge which instructs a jury to acquit under such circumstance, is erroneous.—Johnson v. The State, 94 Ala. 35.

It is next contended that there was no authority for sentencing the defendant to hard labor for the county, that under section 3733 of the Code, the defendant could be sentenced to the penitentiary only. Section 3733 of the Code and section 4492 have been judicially construed by this court. The two sections are not consistent, and it was held, for reasons stated which need not be repeated, that the latter section controls. The very question has been adjudicated more than once and is finally settled.—Zanor v. The State, 90 Ala. 651; Gunter v. The State, 83 Ala. 96. There is no error in the record.

Affirmed.  