
    Goley v. The State.
    
      Indictment for Murder.
    
    1. Special venire in capital case; how constituted. — Under the statutory provisions relating to the organization of special juries in capital cases (Sess. Acts 1886-7, p. 151), when the day set for the trial comes in a week subsequent to that during which the order fixing it is made, the special venire must consist of the persons specially drawn, and the persons “summoned and served as regular jurors” for the week of the trial; but, when the trial is fixed for a day of the same week during which the order is made, it should consist, iñ addition to the persons specially drawn, only of the regular jurors who have been organized for service during the week, omitting those who, though summoned, failed to appear, or were excused ; and if the latter are included in the special venire, the error will work a reversal of the judgment, though no objection or exception to it was made or reserved.
    2. Charge on pari of evidence only; absence of motive, and friendly relations between parlies. — A charge which selects and gives undue pi’ominonce-to particular portions of the evidence, to the exclusion of other material portions, is properly refused; as, where it asserts that the failure to prove any motive for the crime, or the proof of friendly relations between the defendant and the deceased, “is a strong circumstance in favor of the defendant’s innocence.”
    From- the Circuit Court of Conecuh.
    Tried before the Hon. John P. Hubbard.
    The defendant in this case was indicted for the murder of William Luckey. by shooting him with a gun; was convicted of murder in the second degree, and sentenced to the penitentiary for the term of ten years. On the trial, he reserved several exceptions to the action and rulings of the court in the organization of the petit jury; but no objection was made, and no exception reserved, to the order for a special venire, for which the judgment is here reversed. Exceptions were also reserved by the defendant to the refusal of the following charges, which were asked by him in writing: (1.) “If the jury find that the State has failed to prove any adequate or sufficient motive for committing the crime charged, they can look at such failure as a strong circumstance tending to show the defendant’s innocence.” (2.) “If no motive for the crime is found, this is a very strong circumstance in favor of the defendant’s innocence, and as tending to show his innocence.” (3.) “If the jury believe from the evidence that the deceased called to the defendant to wait for him, on the morning of the shooting, just before the killing; and that the defendant did stop and wait, at the request of the deceased; and that their feelings were friendly towards each other; this is a circumstance the jury may look at, as tending to show that there was no malice, and that the shooting was done accidentally, or by misadventure; and if they so believe that the killing was the result of an accident, or misadventure, they must find the. defendant not guilty.”
    Thos. N. McClellan, Attorney-General, for the State.
   CLOPTON, J.

The term of the Circuit Court of Conecuh county may continue two weeks. On Monday of the second week, which is the week for the trial of criminal cases, the court made an order setting Friday of the same week for the trial of defendant, who was charged with murder, and that the sheriff serve on him a list of the special jurors drawn in open court, “together with those jurors summoned and served on the regular venire of jurors drawn for the second week of said court.” The tenth section of the “Act to more effectually secure competent and well qualified jurors in the several counties of this State, with the exception” of certain named counties, provides, “That, when any capital case or cases stand for trial, the court.shall, at least one entire day before the same are set for trial, cause the box containing the names of jurors to be brought into the court-room, and, after having the same well shaken, the presiding judge shall then and there publicly draw therefrom not less than twenty-five, nor more than fifty of said names, for each capital case; ‘a list of which shall be immediately made out by the clerk of said court, and an order issued to the sheriff to summon the same to appear upon the day set for trial, in like manner, and under like penalties, as provided for summoning grand and petit jurors in section five (5) of this act; and the names of the jurors so drawn, together with the panel of petit jurors organized for the week, shall constitute the venire from which the juries to try said capital case or cases shall be selected.” By the eleventh section of the act it is provided, that when the term of the court continues two or more weeks, and by law the criminal docket is not taken up until the second or third week, the court, in its discretion, may, on any day of the term, fix the trial of the capital case for any day of a subsequent week; and if the sheriff shall serve a copy of the special jury drawn to try ■ the case, together with a copy of the jurors drawn and summoned for such week, it shall be held a compliance with the law requiring a copy of the jury to be served on the defendant as previously provided in the act. — Acts 1886-7, p. 151.

By the statute, the venire from which the jury to try a capital case is to be selected, can be constituted only of the special jurors drawn, and the panel of petit jurors organized for the week during which the case is set for trial. "When the order setting a day for trial is made, and the day of trial is a subsequent day of the same week during which the order is made, the copy of the list served on the defendant should contain only the names of the jurors who constitute the venire from which the jury is to be selected. . Persons who are drawn and summoned for such week, but who do not compose a part of the organized juries, should be left off the list. But, when the court, in its discretion, makes an order on some day of tbe term, fixing tbe trial of a capital case for a day of a subsequent week, the order being made before tbe juries for tbe week of the trial can be organized, it is provided tbat service of a copy of tbe special jury drawn, and of tbe jurors drawn and summoned for tbe week of tbe trial, shall be a compliance with tbe law requiring a copy of tbe jury to be served on the defendant. This is tbe case contemplated by the eleventh section ,of tbe act; and in no other case should tbe names of tbe jurors summoned for the week of tbe trial, who do tiot constitute a part of tbe organized juries, be placed on tbe list served on tbe defendant. Morrison v. State, 84 Ala. 405. Tbe order of tbe court, which t^as made on Monday of the second week, tbe trial being set for Friday of tbe same week, required the sheriff to serve on tbe defendant a copy of tbe list of jurors specially drawn for tbe trial, and of tbe jurors drawn and summoned for tbe second week of tbe court. This is an error, for which tbe judgment must be reversed. — Posey v. State, 73 Ala. 490.

Tbe charges requested by defendant are argumentative in their character, and select portions of tbe evidence, to which undue prominence is given, to tbe exclusion of other parts, which should be regarded by tbe jury. Tbat tbe defendant and tbe deceased were friendly, and tbat no motive for tbe crime is shown, are circumstances to be considered in determining whether tbe killing was with malice, or was tbe result of an accident. But, in determining tbe question, tbe jury can not regard these circumstances alone. They should consider the whole evidence.

Tbe other questions relating to tbe drawing and impanelling of tbe jury will not probably arise on another trial.

Reversed and remanded.  