Lewis v. State , 121 Ala. 1 ( 1898 )

", ’ MoOLELLAN/ 0:; .J.-

— Coiistruiug tbe first plea of 'former jeopardy ‘ihbst strongly against tbe defendant, it shows only thatjlie juryman,' Oliambless, was directed d>y. tbe court. to, leave tbe jury box, that he thereupon Stood aside, in the court room under tbe eye and in tbe '^presence'of the court, that immediately thereupon tbe ■defendant objected to bis'being taken off the jury and jtiie congt thereupon immediately directed and caused liim .tig resume bis place among tbe jurors and as a member .of tile 'jury.' Clearly upon this state of facts this 'juror ivas never discharged from tbe jury and tbe jury as a body was not discharged, or its organized identity 'jínpéatíb'ed: And''when, upon another juror making known .to' the court that he,' .too, as well as Chambless, 'bad'been a juror on a former trial of’ this case, tbe jury Hvas discharged and 'a venire de novo' ordered, tbe action was taken at'the instance of the defendant, and it will not avail him now. Kendall v. State, 65 Ala. 492; Morrisette v. State, 77 Ala. 71. The rulings of the court in sustaining a demurrer to the first plea, in overruling tbe demurrer to the replication to tbe second plea, and in giving tbe affirmative charge for the State on the issue of jeopardy vel'non as presented by tbe second plea and tbe replication thereto — tbe facts being admitted — were therefore free .from error.

A tendency of tbe evidence went strongly to prove tbe ‘averments of thé indictment, at least to tbe extent o'f ''showing an assault and battery. ' The time and venue '■'were proved. Of course, therefore, defendant was not ' entitled to tbe affirmative charge.

t . The defendant, requested tbe court to give the following charge: “The defendants charged with tbe offense . of an assault with .intent to murder, and unless each .’ and.every one of the jury .is satisfied of his guilt to a moral certainty and beyond- all reasonable doubt, then <.you cannot convict this defendant, and if you do convict ■ this defendant without each' and every one of you being ; so satisfied then -you violate' your oaths and diregard tbe ■'instructions of the court.” This charge was properly refused. One vice infecting it is pointed out in the case of Cunningham v. State, 117. Ala. 59, 66-7: “It is calculated to impress tbe mind Of a juror with the idea that bis yerdict must be reached and adhered to without the qjfiof that consideration and deliberation with his fellow jurors, which the law intends shall take place in the jury room.” Another infirmity is the tendency of the charge to mislead the jury to the conclusion that they should either find the defendant guilty of an assault with intent to murder, or acquit him, when it was open to them to find him guilty of an assault and battery. And, again, it tends to make every juror the keeper of every other juror’s conscience, and to forbid each juror to favor a verdict of guilt because forsooth another juror may have a reasonable doubt.

Defendant was palpably not prejudiced by the question to the person alleged to have been assaulted: “Did the defendant ever assault you?” Moreover, his objection to the question was not seasonable; it should have been made before the question was answered.

Affirmed.