Adams v. State
133 Ala. 166
Ala.
1901
Check Treatment
DOWDELL, J.

Section 5004 of the Criminal Code under which the special venire in this сase was drawn, provides as follows: “When any capital case or cases stand for trial, the court shall, at least one entire day before ¡the same are set 'for trial, cause the box cоntaining the names of jurors to be brought into the courtroom, and after having the same well shaken, the pre*171siding judge shall then and there publicly draw therefrom not less than twenty-five nor more than fifty of such names for each capital case [italics аre ours, and for purposes that will appear hereafter], a list of which shall be immediately made out by the clerk of the court, and an order issued to the sheriff to summon the persons so drawn to apрear upon the day set for trial, in like manner and under like penalties as he is required to summon- grand and petit jurors, If the names in the jury-box should be exhausted before the completion of the drawing of such special jurors, the court shall direct the sheriff to summon from the qualified citizens of the county, the specified number of persons necesssary to complete the number of special jurors ordered by the сourt.”

At the time of setting a day for the trial of the defendant there were two capital cases pending in the circuit court, that of the defendant and one of the State v. Dan McGuire. These defendants were separately indicted and for separate and distinct felonies. Both eases were by order of the court set for trial on the same day, and by order of the court only one drawing of speciаl jurors was had, which together with the regular jurors drawn and summoned for the week -of the trial, constituted one and the same special venire for the trial of both cases. On the day of the trial a jury of twelve was first selected from the special venire for the trial of the defendant Dan McGuire, and thereupon and then the court proceded to the selection of a jury of twelve for the trial of the appellant, all аgainst this defendant’s objection. Before a jury had been completed, the names of all of the persons who had been .selected for the first jury, were drawn, - and as each was drawn, the slip containing thе name, was directed by the court to be laid aside, and the defendant denied the right of passing on said jurors by challenging or accepting.

From the foregoing statement it is apparent that the defendant did nоt have the number of jurors from which to select a jury for his trial, ‍‌‌‌‌​‌​‌​‌‌‌​‌‌​​‌‌‌​‌‌​‌​​​‌​‌​​‌​‌​‌‌‌​​‌​​​‌​‍which the former order of the court, made in setting a day for his trial gave him, and this by the action of the court. It . is *172wholly different from, and does not come within the principles and reason of those cases, where one or more of the regular jurors, who constitute in part the special venire, may happen at the time of the drawing and selecting of a jury in а capital case, to be engaged in the trial of some other case, as in Kimbrough v. State, 62 Ala. 248, and similar cases. As was said in Evans v. State, 80 Ala. 6, in such cases., “the ruling is founded on the presumption, that when the legislature provided that the regular jurors in attendance shоuld constitute a part of the venire, it was contemplated that some of them might be 'engaged in the trial of another cause, and that the right of the defendant to have such regular jurors called is subject to the due administration of the law, and does not operate to delay or obstruct the business of the court.” The necessities in such cases arise not by any act of the court, but unavoidably in the due administration of the law. But so much cannot be said in the present case. Nor can it be said, that it was within the contemplation of the legislature in the enactment of the statute under which the venire in this case was drawn, that any of the special jurors drawn on the venire might be engaged in the trial of аnother cause at the time of the drawing and selecting tlie jury from the venire for the trial of the case. The statute provides, that not less than twenty-five nor more than fifty special jurors, may be drawn for the speciаl venire, and if one venire may be ordered for the trial of two cases., why not for the trial of three cases, or as for that matter four cases; and if the number of special jurors ordered be thirty-six, it would be possible in making up the first threе juries of twelve each, from the special venire, to exhaust the thirty-six special jurors drawn, leaving to the fourth defendant, not one of the special jurors drawn for his trial, and only the regular jurors from which to select his jury, thereby utterly1- defeating the purposes of the statute. The question here presented, that is, of drawing one special venire for the trial of two separate capital cases, ‍‌‌‌‌​‌​‌​‌‌‌​‌‌​​‌‌‌​‌‌​‌​​​‌​‌​​‌​‌​‌‌‌​​‌​​​‌​‍was considered by this сourt in the case of Evans v. State, supra, not under the present statute above set *173out, but under a local statute entitled an act “To regulate the drawing and empaiineling of grand or petit jurors in Dallas county,” approved February 14, 1885, (Session Acts, 1884-85, p. 492). In construeing the рart of this act relating to the drawing and selecting of a jury for the trial of a capital felony, it ivas held to be error to order one venire for the trial of two defendants separately indicted for separate and distinct felonies. Without repeating all that was there said, with regard to the manifest operation of the provisions of the statute to preserve unity, etc., in empanneling a jury, and contemplаting that it shall be a proceeding in the particular ease, individualized and separate from all other criminal cases pending in the court, it may be here observed, that what was said, applies with equal force and reason to section 5004 now under consideration. This section formed a part of the act approved February 26, 1887, which, as originally passed, excepted from its provisions certain counties named therein. In express terms, as originally enacted, and as it now stands in the Code, it provides for a drawing of special jurors “for each capital case” that is, when more than one capital case stands for trial. Section 5005, which follows section 5004, directs what- shall constitute the venire for the trial of a capital case. This section provides, that the special jurors so drawn together with the regular jurors drawn and summoned for suсh subsequent week, when set for trial other than a day of the first week, shall constitute the venire. Section 5009 directs the manner of drawing the jury on the day set for the trial. This section provides that the names of the jurors summoned for the trial as well as the names of the regular jurors in attendance, must be written on slips of paper, folded or rolled up, placed in a box, or some substitute therefor, and shaken up, to be drawn out, onе by one, in the presence of the court by some officer designated by the court-, until a jury is completed. It is manifest from these provisions that it was intended to secure to the defendant the right to select 'his jury from the special jurors drawn and summoned for his trial, not from a part of them, but from *174all, and likewise from the regular jurors constituting in part the special venire, but in case of the regular jurors, subject, of course, to the contingency of one ‍‌‌‌‌​‌​‌​‌‌‌​‌‌​​‌‌‌​‌‌​‌​​​‌​‌​​‌​‌​‌‌‌​​‌​​​‌​‍or more of them being at the time engaged in the trial of some other cause.

The case of Chamblee v. State, reported in 78 Ala. 466, was decided at the same term as Evans v. State, supra, and cites the latter case, differentiating the two cases. The statute under consideration in Chamblee’s case, was*the аct approved February 17, 1885 (Session Acts, 1884-85, p. 181). The provisions of this act relative to the drawing of jurors for capital felonies are materially, different from the provisions of section 5004 of tbe Code. Section 10 of this act provided for the drawing of one special venire from which to select juries for capital cases standing for trial.

The statute under consideration in the case of Thomas v. State, 124 Ala. 48, was a local statute, applying to Montgomery county. This act in express terms authorized the drawing of one venire for the trial of two or more capital cases.

Our conclusion is that the circuit court committed еrror in ordering one special venire for the trial of two separate and distinct cases.

The defendant requested in writing many charges, quite a number of which were refused by the court. Some of the refused charges contained correct expositions of the law, and others did not. According to the order in which, they appear in the record, the first refused charge which should have been given is numbered 14. This charge was held good in Compton v. State, 110 Ala. 34, and in Stoneking v. State, 118 Ala. 70. The only difference between the chаrge here and the charge in those cases being, that in the latter the language used is — if the jury has a reasonable doubt of defendant's guilt of manslaughter “‘arising out of any part of the evidence;” while the language used ‍‌‌‌‌​‌​‌​‌‌‌​‌‌​​‌‌‌​‌‌​‌​​​‌​‌​​‌​‌​‌‌‌​​‌​​​‌​‍in thе present charge is — “arising out of all of the evidence.” The change instead of detracting from the charge tended, to make it a more perfect one, and ¡the court erred in its refusal.

*175■Charge No. 9 refusеd to the defendant is an exact copy of a charge which was held to correctly state the law, in Smith c. State, 68 Ala. 430. I think the charge is a correct statement of the law, and I approve the former ruling in Smith's case, supra. The majority of the court, at present, however, are of a contrary view and hold that the charge is faulty in that it is misleading in its tendency, and for ¡that reason was properly refused.

If charge No. 13, as copied in the record, is a correct copy of the charge as asked — and we cannot say that it is not — then it can hardly be said to be intelligible. Charge No. 1 is subject to like infirmity. Charge No. 22 is indefinite and uncertain, with tendenсy to mislead.

The evidence without conflict showed that the defendant- after the killing fled from the State, and was apprehended in Arkansas and brought back from that State. This was all of the evidence as to flight — no explanation was offered. Under this state of the evidence, charge 6, whether abstractly good or not, was properly refused.

There was evidence tending to show that the defendant brought on the difficulty, and under ‍‌‌‌‌​‌​‌​‌‌‌​‌‌​​‌‌‌​‌‌​‌​​​‌​‌​​‌​‌​‌‌‌​​‌​​​‌​‍this phase of the evidence, charge 8, if bad for no other reason, was properly réfused.

Charges hypothesizing self-defense in general terms which omit- to set out the constituent'elements of self-defense, have been condemned by this court in' Miller v. State, 107 Ala. 40, and in Gilmore v. State, 126 Ala. 20. So also charges hypothesizing one or more elements of self-defense without setting out all of the constituent elements, and asking an acquittal on those hyрothesized if believed, should be refused. The refused charges not herein -above specially mentioned, are either subject to the infirmities just stated, or are argumentative, or are faulty in misplacing the burden of proof.

It would unnecessarily prolong this opinion to attempt to deal with the refused charges separately. What we have said is sufficient for the purposes of another trial. For the errors pointed out the judgment of the circuit court must be reversed and the cause remanded.

Reversed and remanded.