Bean v. State, 126 Ala. 1

Bean v. State

126 Ala. 1 | Ala. | 1899

McCLELLAN, C. j.

On the evidence in this case it was a question for the jury whether the jury commissioners selected J. S. Davis as a person fit and competent *4to discharge the duties of a grand and petit juror, and intended to transcribe the name of J. S. Davis on the slip of paper which they deposited in the jury box; and if the .jury found affirmatively upon this issue, and further that the name W. S. Davis was through inadvertence or ■clerical misprision written upon the slip instead of the name J. S. Davis, and so placed in the box, they would have been properly led to the final conclusion that J. S. Davis and not W. S. Davis was drawn as a juror and, •of consequence, that the plea in abatement was not sustained by the evidence. But the affirmative- charge given for the State on the issue presented by the plea in ■abatement took this inquiry away from the jury; and the •action of the court in this connection was, therefore, erroneous.—Cochran v. State, 89 Ala. 40.

For the purposes of another trial we may remark that the testimony of the Davis who served as a grand juror to the effect that he had been christened, and that at some time in the remote past while living in another State he had borne the name of John Wesley Solomon Davis was irrelevant 1 and impertinent. That was neither his name in fact nor was he known by it at the time the jury box was filled; the middle name “Wesh-y” having been wholly discarded by him years before and never having been employed by him or by others or known to others during the long period of his residence in this State.

Reversed and remanded.