There was no error in the procedure of the trial court with respect to the venire from which the panel was selected for the trial of this defendant. Although the solicitor had stricken one name from the list, it was the duty of the court, upon discovering that the list contained only 29 names, to suspend the proceeding until other names could be added to the list so as to furnish a minimum of 30 veniremen, as required by law; and it was of course proper to restore to the list the name of the stricken juror, in order to begin anew the process of striking. Acts 1919, pp. 1039, 1041.
It appears that all the jurors who participated in the previous trial of defendant the same week were stricken by the solicitor, thereby eliminating that ground of complaint.
The venire was not vitiated by the fact that some of the veniremen were present in court during defendant's previous trial, and heard the testimony and knew what the verdict was. Stover v. State, 204 Ala. 311, 85 So. 393.
The trial court did not err in allowing Winford, the victim of the robbery, who was assaulted and shot by the robber, to testify as to the character, extent and duration of his injuries. The precise question was so ruled by this court in Brown v. State, 120 Ala. 342, 25 So. 182.
Defendant testified on cross-examination that when he was arrested he was wearing a cap, and that he had left his hat at a shop to be repaired. He was then asked, and over his objection required to answer, whether his hat had a bullet hole in it. His answer was that it had a little hole burned in it by laying a cigarette on it one night. In view of the fact that Winford shot at his assailant several times during the assault, we think it was competent for the state to *Page 430 show that defendant's hat worn on that day had a bullet hole in it, and that he was putting the hat out of sight. It was of course a slight circumstance, and subject to explanation, if any there was; and defendant in fact offered an explanation, the credibility of which was for the jury, under all the evidence. We have examined with due care the other rulings on the evidence, and find nothing of which defendant can complain.
Defendant excepted to a portion of the oral charge, as shown in the statement above. The writer was, at first, of the opinion that the matter objected to did not embrace any statement of legal principles, but was merely a homily on the heinous nature of the crime of robbery, and the theory of criminal intent upon which the law authorizes the infliction of capital punishment in robbery cases. Such observations from the bench, dealing in the abstract with the crime charged, and in no way suggesting the guilt of the defendant, nor the degree of his punishment if found guilty, cannot be regarded as prejudicial, and indeed are entirely within the proprieties. But, upon a more deliberate analysis and consideration of the language in question, we have reached the conclusion that it invades the province of the jury by suggesting, not only the appropriateness of capital punishment in robbery cases, but also that every highway robber intends, from the inception of his plan to rob, to also kill his victim if necessary to effect his purpose, or to make his escape. While this is a fair and reasonable inference of fact, it is not an inference of law, nor can it be properly suggested to the jury by the trial judge as an inference of fact in any particular case. In the instant case the suggestion that such an intent existed may very probably have exerted an important influence upon the verdict of the jury in the infliction of capital punishment. We therefore hold that it was error which must work a reversal of the judgment of conviction.
Reversed and remanded.
ANDERSON, C. J., and McCLELLAN, SAYRE, and MILLER, JJ., concur.
GARDNER and THOMAS, JJ., dissent.