The indictment charged the defendant with the offense of murder in the first degree. His trial resulted in a conviction of murder in the second degree, and his punishment was fixed by the jury at imprisonment in the penitentiary for a term of ten years.
On this appeal the only questions presented are the ruling of the court in overruling the defendant's motion to quash the venire and the refusal of special written charges numbered 1, 2, and 3.
The action of the court in overruling the motion to quash the venire is not insisted upon in brief of counsel for defendant; however, we have carefully examined the record in this connection, and are of the opinion that the court committed no error in this ruling. The order of the court fixing the number of jurors to try this case at 62 persons was fully complied with, there being 37 names on the list of the regular venire for the week in which the case was set for trial, as shown by the returns of the sheriff, and, in addition thereto, the court, without error, drew from the regular jury box of the county the names of 25 special jurors to try this case; the 25 special jurors so drawn and summoned for said week of court to constitute the venire *Page 448 of 62, the number fixed by the court from which to select a jury for the trial of this cause. It appears, therefore, that no ruling of the court deprived the defendant of the full jury as ordered by the court, and that the substantial rights of the defendant in this respect were not injuriously affected. The mere mistake in a juror's name is no ground for motion to quash the venire. Smith v. State, 165 Ala. 50, 51 So. 610; Harris v. State, 203 Ala. 200, 82 So. 450; Tennison v. State,188 Ala. 100, 66 So. 112.
It appears upon examination that the refusal of written charge 1 was authorized, in that said charge was fully and fairly covered by the oral charge of the court. The oral charge of the court as a whole covered every possible phase of the law governing this case. Charge 2 was elliptical and unintelligible, and was also argumentative; it was therefore properly refused. Charge 3 was properly refused as being invasive of the province of the jury, as it was for the jury to say from all of the evidence whether the defendant was free from fault in bringing on the difficulty as a result of the occurrence at his house just prior to the fatal encounter, or otherwise.
It appears from the entire record that the cause was properly submitted to the jury for its consideration and determination, and that no error appears in any of the rulings of the court.
The judgment of the circuit court is therefore affirmed.
Affirmed.