60 Ala. 10, 31 Am. Rep. 28 (1877)
The record disproves the assertion, that no list of the jurors summoned for the trial of the prisoner was served on him, as the law directs; and we think the oath administered to the jury, was, in every respect, full and complete. The statement of the record is, “And the said jury, so impanneled as aforesaid, were sworn and charged well and truly the issue joined to try, wherein the State of Alabama is plaintiff, and Robert Washington, the prisoner at the bar, is defendant on trial, and a true verdict to render according to the evidence.” The word sworn, used in the connection above, ex vi termini imports that they were sworn according to the formula observed in our courts of justice; and the residue of the recital conforms substantially to the statute. — Code of 1876, §4765.
“Every homicide, . . . perpetrated by any act greatly dangerous to the lives of others, and evidencing a depraved mind regardless of human life, although without any preconceived purpose to deprive any particular person of life, is murder in the first degree.” — Code of 1876, §4295. The prisoner, in his confession, disclaimed any intention to injure any one, and declared that his purpose was only to frighten the inmates of the house. For the purpose of considering this feature of the defense, apart from all others, we leave out of view all evidence of motive, malice, or formed design, as indicated by the prisoner’s conduct at the preaching on the Sunday night preceding, by his sudden flight from the scene of his violence, and by the testimony of Bina Jackson. On this question we confine ourselves to the manner of the shooting itself, and to the proved position of the inmates of the house, at the time the pistol was fired. If the object was simply to frighten, why fire the pistol into the house? Why not fire it near the window, and pointed upward, or from the house? The testimony is, that there were a burning fire and lighted lamp in the room. Then, why fire diagonally through the room, in the direction of where three or four inmates sat, near the fire, and not across the room, towards the door, which would have harmed no one? The light in the room enabled him to discern where the inmates sat. Then, why fire the pistol, directed in proper range towards one or more of them, if his object was only to frighten?
We have given expression to these reflections, not with any view of pronouncing on the facts. That is not for us. Our sole object is, that we may pronounce on the correctness of the charges asked and refused, in the light of the testimony before the jury. All the charges asked were properly refused, under the state of the proof before the jury. They were well calculated to mislead, by withholding from their consideration one of the most damaging tendencies of the testimony. They ignore, altogether, the reckless discharge of a loaded pistol, pointed, at short range, directly towards persons sitting quietly together, unconscious of danger; and the inference arising therefrom, of a depraved mind, regardless of human life. To have justified the giving of either of the charges, the jury should have been told that, to constitute such mitigation of the offense, it was necessary that there should be an absence of that depraved mind, which does not regard human life. — 2 Whar. Cr. Law, §§ 965, 997. Sport does not usually employ such dangerous methods as were resorted to in this case; and before the jury are justified in inferring the less wicked motive, sought in the charges to be inferred, they should be affirmatively convinced that there was not the depraved mind, which the recklessness of the act tended to show.
The affirmative charge of the court is a correct exposition of the law.
The judgment of the court is affirmed.