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Westbrook ats. Marbury L. Co., 121 Ala. 179..
Western Assurance Co.. v. Hall, 120 Ala. 547.
Western R. of Ala. v. Sistrunk, 85 Ala. 357.
Westmoreland v. Trousdale, 60 Ala. 448.
Wheat v. Fuller, 82 Ala. 572..

Wheeler ats. Alexander, 69 Ala. 342.
Wheeler v. McGuire, 86 Ala. 398...
Whetstone ats. McQueen, 127 Ala. 417.
Whigham ats. Collins, 58 Ala. 438.
Whisenant ats. Wynne, 37 Ala. 46.
White v. Keith, 97 Ala. 668..
White v. King, 53 Ala. 162.

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CASES

IN THE

SUPREME COURT OF ALABAMA.

NOVEMBER TERM, 1901.

Sanders v. The State.

Indictment for Murder.

1. Organization of jury; sufficient service of venire upon defendant. The service of a list of jurors to try the defendant in a capital case is a sufficient compliance with the order of the court for the service of a copy of the venire for such trial, as provided by statute, (Code, § 5273) although the paper served may not be a full copy of the venire, in that the list so served is not in the form of a mandate, and is not served by the clerk.

2. Trial and its incidents; action of jurors upon which order of trial court is not had will not be reviewed. -The fact that two of the jurors drawn to try a capital case converse with bystanders immediately after the jury was empannelled and sworn, upon which no ruling of the trial court was invoked, constitutes no ground for the reservation of an exception, since it is only the rulings of the trial court that can be reserved for review on appeal to the Supreme Court.

3. Evidence; when particulars of a difficulty admissible in evidence. Where the defendant upon the cross examination of a witness brings out the particulars of a previous difficulty, it is competent for the State upon redirect examination of said witness, to call for further facts relating to the same particulars of such previous difficulty.

4. Same; evidence as to conversations. Where one party draws out a part of a conversation, the other party is entitled to prove the whole of it.

5. Homicide; admissibility of evidence. On a trial under an indictment for murder, where it is shown that the defendant and the deceased had a difficulty the day previous to the homicide, it is competent for the State to prove that after such quarrel the defendant left the place where it oc[Sanders v. The State.]

curred, presumably going home to dinner, and that on his return in the afternoon he brought a pistol with him; such evidence tending to show preparation for the homicide next day, and premeditation in respect of it.

6. Same; same. In such a case it is competent for the State to prove that the defendant's brother who was present during the quarrel between the deceased and the defendant, and who was engaged in the difficulty the following day in which the killing took place, also had a pistol when he returned to his work in the afternoon of the first day.

7. Same; evidence as to flight. On a trial under an indictment for murder, where it is shown that the defendant fled me country immediately after the homicide, it is not competent for the defendant to prove, as tending to show that his flight was not due to consciousness of guilt, that three weeks after the homicide a mob was formed and an attempt was made by it to lynch the defendant's brother who was jointly indicted with him, and two other men charged with aiding the defendant to escape, all of whom were then confined in the county jain.

8. Trial and its incidents; jury should take indictment into the jury room with them. In the trial of a criminal case, it is necessary that the jury should take the indictment with them on their retirement to consider of their verdict; and the fact that the defendant was jointly indicted for murder for the same offense, and that the verdict of the jury which tried his co-defendant was endorsed on said indictment, does no render it improper for such indictment to be taken by the jury in their retirement.

APPEAL from the Circuit Court of Perry.
Tried before the Hon. JOHN MOORE.

The appellant in this case was jointly indicted with his brother, John Green Sanders, for the murder of William Mullen. There was a severance, and each of the defendants was tried separately. The appellant in this case was convicted of murder in the first degree and sentenced to be hung.

Before proceeding to trial the defendant made a motion to quash the venire in the cause upon the following grounds: "First. Because there was not served on the defendant, or on counsel appearing for him, a copy of the indictment and copy of the nire for his trial one entire day before the day set for the trial as required by law. Second. Be

a

ve

[Sanders v. The State.]

cause the paper purporting to be a copy of the venire for defendant's trial does not show in what court the case was set for trial. Third. Because the paper purporting to be a copy of the venire for defendant's trial does not show in what county said venire was drawn. Fourth. Because said paper purporting to be a venire for the trial of defendant is not signed by the clerk of said court nor in any way authenticated as a copy of the venire for his trial. Fifth. Because the paper served on the defendant is not properly or legally authenticated as a copy of the original indictment in this cause."

The other facts of the case necessary to an understanding of the decision on the present appeal are sufficiently stated in the opinion.

B. M. ALLEN for appellant.-The paper or list of names served on him was not a copy of the venire and the court erred in overruling appellant's motion to quash and erred in requiring appellant to go to trial against his said objection. -Ezell and Walker v. State, 54 Ala. 165; Nutt r. State, 63 Ala. 180; Wharton American Criminal Law, § 596; Tidwell v. State, 70 Ala. 33; Sayre v. State, 30 Ala. 15; Page v. State, 61 Ala. 16; Hubbard v. State, 72 Ala. 168.

It was error to allow the witness to testify that the defendant had a pistol on the day before the killing, there being nothing to show that it was the pistol used in the perpetration of the alleged homicide and no connection shown between the possession inquired about on the day before the killing and the alleged killing.

The fact of a previous difficulty between the deceased and the defendant may be given in evidence, but not the merits or details thereof.-Gray v. State, 63 Ala. 66; McNally v. State, 74 Ala. 9; Commander v. State, 60 Ala. 1; Fair v. State, 58 Ala. 74; Kilgore v. State, 114 Ala. 28; McRae v. State, 120 Ala. 360; Whilden r. State, 71 Am. Dec. 181; Saylor v. Com., 30 S. W. Rep. 390; State v. Clayton, 13 S. W. Rep. 819; Joyce v. Com., 78 Va. 287.

Where the State shows the flight of the defendant as evidence tending to show a consciousness of guilt the defendant may rebut the effect of said evidence by show

[Sanders v. The State.]

ing some other cause or excuse for his flight. He may show that his flight was attributable to other and more innocent motives. --Sylvester v. State, 71 Ala. 26; White v. State, 111 Ala. 97; Bowles v. State, 58 Ala. 335; State v. McDevitt, 69 Iowa 549.

On the question of a separation of a jury after it had retired to deliberate, the appellant cites the following authorities: State v. Williams, 45 Ala. 57; Morgan v. State, 48 Ala. 65; Williams v. State, 48 Ala. 85; 1 Bishop's Criminal Proceedings, §§ 993-999; 1 Bishop's Criminal Law (4th ed.), § 855; 1 Bishop's Criminal Proceedings, § 814; Wharton Am. Criminal Law (3rd ed.), 1010; Overlee v. Com., 1 Robinson, 756; People v. Douglas, 4 Cowen 26.

CHAS. G. BROWN, Attorney-General, for the State. The caption to the list of jurors and the return of the sheriff thereon show that a copy of the indictment and a list of these regular jurors and special jurors, as ordered by the court, were served on the defendant more than one day before the day set for the trial of the case. Overton v. State, 60 Ala. 75; Hubbard v. State, 73 Ala. 168.

It is not pretended that defendant was in any way deceived or misled by the list served on him, and in the absence of any showing that such was the case the venire should not have been quashed. See Aiken v. State, 35 Ala. 404-5.

The caption list of jurors and return of sheriff thereon is substantially the same as order of the court in the case of Ford v. State, 129 Ala. 16, held to be a sufficient compliance with § 5273 of the Criminal Code of Alabama (1896).

The bill of exceptions shows that the particulars of the difficulty between deceased and defendant and brother of defendant, on the day before were first brought out by defendant's counsel; it was not error to permit the State to introduce in evidence other particulars and circumstances of the difficulty, and the conduct of defendant at the time of the difficulty. Gordon v. State, 129 Ala. 113; Longmire v. State, Ib. 413.

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