Birmingham Union Street Railway Co. v. Ralph

92 Ala. 273 | Ala. | 1890

COLEMAN, J.

The plaintiff demanded a struck jury, and, in accordance with the statute, a list of twenty-four jurors in attendance upon the court was furnished, from which a jury of twelve was obtained, by the attorneys striking one from the list until twelve were stricken off, and the jury then selected was called, to the jury box, when one of the jurors stated to the court, he was too unwell to sit as a juror; and against the objection of the defendant, the sick juror was excused, reducing the number of jurors to eleven. Thereupon, the court ordered the sheriff to call one of the jurors who had been struck from the list. The defendant objected to the order of the court, and, his objection being overruled, the sheriff called one of the jurors who had been stricken off by the defendant from the list; and this juror was put upon the defendant, who then peremptorily challenged him. The same order was repeated by the court,- and the same proceedings had, until the defendant’s challenges were exhausted — in each instance the juror called by the sheriff being one that defendant had stricken from the list. The fifth juror called was put upon the jury, completing the jury, against the objection of the defendant.

Section 2752 of the Code provides that, in all actions triable by jury, either party may demand a struck jury, and thereupon the sheriff must furnish a list of twenty-four jurors, from which the struck jury must be obtained; and the jury thus obtained must not be challenged for any cause, except bias or interest in the particular case.” There were but twenty-four jurors in attendance upon the court. Exceptions were severally reserved to the action of the court, as each juror was called by the sheriff, and before he was challenged.

Did the court err in ordering the sheriff to call a juror from those who had been stricken from the list, and in putting him upon the defendant ? The right to a struck jury, upon the demand of either party, is clearly secured by statute. If there should be a less number in attendance than twenty-four, it is-the duty of the court to complete the list of competent and qualified persons to twenty-four, before the process of rejection or striking off should commence.—Kansas City R. R. Co. v. Smith, 8 Vol. So. Rep. p. 43 (This case is reported in 90 Ala-25, but no facts are stated to show the application of the principle. These are stated in the So. Rep.) Or, if there should be twenty-lour in attendance, and from any cause the number is reduced to less than twenty-four, the panel should be filled up to twenty-four, from which list the jury should be struck. If the regular jurors in attendance upon the court should exceed twenty-four, the panel of twenty-four should be completed from the regular jurors. If by reason of challenge,, or for other reasons, there should be a less number than twenty-four of the regular juror,s in attendance, from which the list of twenty-four could be furnished, the deficiency should be made up as in other similar cases, and the struck jury then obtained in the manner prescribed by statute.—Adams v. Thornton, 82 Ala. 263; Proffatt on Jury Trials, § 73. When the jury of twelve had been obtained in the present case, and the court excused one of them, before the cause was submitted, the court should have had the panel filled -up to twenty-four names, and ordered a new jury to be struck.—82 Ala., supra. By directing the sheriff to summon jurors from those who had been stricken from the list, and placing them upon either the plaintiff or the defendant against objection, the court thereby deprived such party of the statutory right to a struck jury. The right of challenge and its exercise can not be held a waiver,, as the defendant objected and continued to object, and in each case excepted to the action of the court. The facts of this case illustrate the injury and disadvantage to which a party may be subjected by the result of the course pursued. The court had no authority to direct the sheriff which particular juror he should summon. The order was general, and under this general order, the sheriff summoned five jurors, each of whom had been stricken from the list by the defendant, and not one who had been stricken off by the plaintiff. This probably was accidental, but it nevertheless occurred, according to the bill of exceptions.

Each of the charges asked for by the defendant, when referred to the evidence, was properly refused. The city, if defending the present action, doubtless would say it was not bound to and could not anticipate that the defendant’s cars-would be derailed just before reaching the sewer. Both city and defendant may have been to blame, and possibly neither. We express no opinion, as the case must be reversed for the error in impanelling the jury.

Reversed and remanded.