[Bailey v. The State.] believe the evidence in this case, they must find the defendant not guilty." (4.) "The court charges the jury that if any one of the jury have a reasonable doubt of the defendant's guilt, then the jury should not convict the defendant, but the jury would be authorized under the law to entertain such reasonable doubt, and if you entertain it, you should acquit the defendant." (5.) "If any one of the jury have a reasonable doubt of defendant's guilt, then the jury should not convict the defendant, but the jury can entertain such reasonable doubt and acquit him." J. B. BROWN, for appellant.-The objection to the indictment should have been sustained.-Gordon v. State, 71 Ala. 315. There was no proof of the venue, therefore the general affimative charge requested by the defendant should have been given.-Randolph v. State, 100 Ala. 139; Brown v. State, Ib. 92; Justice v. State, 99 Ala. 180; Bowdon v. State, 91 Ala. 61; Cawthorn v. State, 63 Ala. 157; Bain v. State, 61 Ala. 75. WILLIAM C. FITTS, Attorney-General, for the State. BRICKELL, C. J.-1. The objections to the indictment were not well taken. An indictment for burglary, with intent to steal, may, in the same count aver the intent and the actual larceny, without being obnoxious to an objection for duplicity. The averment of the larceny is not regarded as the averment of a distinct offense, but merely as the averment that the particular burglarious intent was consummated.-Wolf v. State, 49 Ala. 359; Adams v. State, 55 Ala. 143; Gordon v. State, 71 Ala. 315. 2. In offenses against property, the indictment must aver the ownership if it be known. When the ownership resides in a corporation, it is sufficient to aver or employ the corporation name. It is not necessary, as is supposed by the objection taken, to aver that the corporation is either a foreign or a domestic corporation, nor is it necessary to aver that the corporation had power or capacity to acquire the property, nor to negative that the defendant was a stockholder in the corporation. Rapalje on Larceny, §§ 103-151. 3. The bill of exceptions recites that it contains all [Hurd v. The State.] the evidence given on the trial. We have carefully examined the evidence, and it is silent as to the locality of the offense-that it was committed in the county of Cullman. The offense, therefore, was not proved as laid, and according to repeated decisions of this court, the court below erred in the refusal of the general affirmative charge to find for the defendant, requested in writing.-Brown v. State, 100 Ala. 92; Randolph v. State, Ib. 139; Justice v. State, 99 Ala. 180, and authorities. 4. As the cause must be reversed for the error pointed out, it is unnecessary to consider the numerous objections to the admission of evidence; they may not arise on another trial, or may be differently presented. There was no error in the refusal of the other instructions requested. Let the judgment be reversed and the cause remanded; the defendant will remain in custody until discharged by due course of law. 116 440 116 458 116 668 116 440 122 70 116 440 124 63 124 70 125 24 116 440 128 634 Hurd v. The State. Indictment for Murder. 1. Pleading and practice; appeal; presumption as to correctness of rulings on charges when the bill of exceptions does not purport to set out all the evidence. When the bill of exceptions in the transcript of a case does not purport to set out all of the evidence, and the rulings of the court as to instructions to the jury may have been justified by some condition of the evidence, the appellate court presumes that the evidence justified the charges given by the court, and the refusal of the court to charge as requested. 2. Drawing of special venire in capital case; presence of defendant not necessary.—In a capital case, the defendant must be personally present in court when the day of his trial is fixed, and the order made summoning a special venire, and such presence must be affirmatively shown by the record on appeal; but the law does not require that the defendant be personally present when the special venire is drawn from the jury box, and his absence at such time furnishes no ground for the arrest of a judgment of conviction. APPEAL from the City Court of Montgomery. [Hurd v. The State.] The defendant was indicted, tried and convicted for the murder of Theus Judkins, was convicted of murder in the first degree, and sentenced to the penitentiary for life. There were several charges given to the jury by the court, and several charges requested by the defendant to be given to the jury were refused. To each of these rulings the defendant separately excepted. It is not necessary on this appeal to set out these charges in detail. The defendant made a motion in arrest of judgment. upon the following grounds: "1. That it does not affirmatively appear from the record that the defendant was present in court, either personally or by counsel, at the time the venire was drawn containing a list of the regular jurors drawn in said cause, or that the defendant was in court, either personally or by counsel, at the time the special venire containing a list of the special jurors was drawn in said cause. 2d. The record affirmatively shows that neither the defendant nor his counsel were present at the time that either the regular or special venire were drawn." This motion was overruled, to which ruling the defendant duly excepted. No counsel marked as appearing for appellant. WILLIAM C. FITTS, Attorney-General, for the State. It is not necessary that the record on appeal in a capital case should affirmatively show that the defendant was present when the special venire was drawn.-Spicer v. State, 69 Ala. 159; Sylvester v. State, 71 Ala. 17. COLEMAN, J.-The defendant was convicted of murder, and sentenced to the penitentiary for life. The bill of exceptions does not purport to set out all the evidence. The record being in this condition, the presumption is, that the evidence justified the charges to the jury given by the court, and its refusal to charge as requested; none of the rulings of the court as to instructions being of such a character but that they might have been justified by some condition of the evidence. The motion in arrest of judgment was properly overruled. The orders of the court, preliminary to the trial, seem to be technically correct. The record affirmatively [Frazier v. The State.] shows, that the defendant was present in court when the day for his trial was appointed, and when the order. was made, specifying the number of jurors to be summoned in addition to the regular panel. The law does not require that he should be personally present, at the time of the drawing of the special venire from the jury box. The per curiam opinion in the case of Hames v. The State, 113 Ala. 674, merely stated the condition of the record, and adjudged that it was insufficient to sustain the judgment of the court. The authorities cited in that case, in support of the adjudication, go no further than to hold, that it must affirmatively appear from the record that the defendant was present in court when the order was made appointing a day for the trial, and for the number of special jurors to be summoned. Spicer v. The State, 69 Ala. 159; Sylvester v. The State, 71 Ala. 17. The question now under consideration was considered and settled in the case of Washington v. The State, 81 Ala. 35. Affirmed. 116 442 116 459 116 469 116 442 125 24 Frazier v. The State. Indictment for Murder. 1. Drawing of special venire in capital case; presence of defendant not necessary. In a capital case it is not necessary that the record should affirmatively show the drawing of the special venire for the trial of the case; and, therefore, it is not essential that the record should affirmatively show that the defendant was personally present when the special venire was drawn from the jury box; and likewise, it is not necessary that the record should affirmatively show that the drawing required by law was had by the judge, since the act of drawing the jurors is a ministerial rather than a judicial act. 2. Same; how question should be presented.—The question of the necessity of the record showing affirmatively that the defendant in a capital case was personally present in court when the venire was drawn, should be raised by exception reserved and presented by bill of exception, and not by motion in arrest of judgment. 3. Homicide; when question assuming fact of killing admissible.—On a trial for murder, when the killing is admitted and the defendant seeks to justify it on the ground of self-defense, there is no error in [Frazier v. The State.] allowing the State to ask one of the witnesses if he remembered the time the deceased (calling him by name) was killed by the defendant. 4. Same; relevancy of evidence; error without injury.—On a trial for murder, when it is admitted that the deceased was sitting down when shot, testimony as to the habit of the deceased in squatting down when engaged in conversation, if abstractly erroneous, is not, when considered in connection with the facts proven, prejudicial to the defendant. APPEAL from the City Court of Montgomery. The appellant was indicted and tried for the murder of one Silas Jones, was convicted of murder in the second degree, and sentenced to the penitentiary for twentyfive years. The facts of the case and the rulings upon the evidence are sufficiently shown in the opinion. ROQUEMORE, HILL & ROGERS, for appellant.—The court erred in not sustaining the motion in arrest of judgment.-Hames v. State, 113 Ala. 674; Spicer v. State, 69 Ala. 159; Sylvester v. State, 71 Ala. 17. The court erred in overruling the objection of the defendant and allowing the State to prove the habits or custom of the deceased.-Thomas v. State, 107 Ala. 13; Poe v. State, 87 Ala. 65. The court erred in allowing the State, against the objection of the defendant, to ask the witness, Dillard, "Do you remember the time Silas Jones is said to have been killed by Joe Frazier?"-Green v. State, 96 Ala. 29. WILLIAM C. FITTS, Attorney-General, for the State. HEAD, J.-The motion in arrest of judgment was properly overruled. The record affirmatively shows that that the prisoner was present at every stage of the proceeding in the trial court at which the law requires such presence to be so shown by the record. The two grounds stated in the motion are: 1. That it does not affirmatively appear that he was present, in court, at the time the venire was drawn containing a list of the regular jurors drawn in said cause; 2, nor at the time the special venire containing a list of special jurors was drawn in said cause. It was held in Washington v. State, 81 Ala. 35, in passing upon a jury law regulating the drawing of juries |