Bondurant v. State

125 Ala. 31 | Ala. | 1899

TYSON, J.

A motion was made in the court below to quash the venire of regular jurors. This motion contained numerous grounds, but the gravamen of complaint in it may be stated to be that the venire facias jwratores was issued by the clerk and register of the city court, when it should have been issued by the clerk of the circuit court, or by the clerk and register of the city court only after being furnished with a list of the names of the persons drawn to appear and serve as jurors.

Under the provisions of the act, “to provide for and regulate the selection and drawing and impanelling of grand and petit juries in Dallas county, Alabama,” approved Dec. 9th, 1898, (Acts, 1898-99, p. 69), it is made the duty of the clerk of the circuit court to attend all sittings of the jury commissioners and keep a record of the names, etc. of all jurors drawn under the provisions of this act ,and to preserve them in his office as clerk of the circuit court.

Section 5 provides: “That upon the completion of any such drawing of juries the said clerk of the circuit court must issue an order in writing to the sheriff of Dallas county commanding him to summon the persons so drawn to appear and serve as jurors, setting forth in said order the name, occupation and residence of every person named in said order and the week of the court for which said juror is to serve, and the sheriff, or other person acting in his place, shall execute said order by giving personal notice to such person or by leaving the written notice at the place of his residence with some member of his family or some person residing in the same house, three days before the day appointed for the commencement of the court; and said order must be returned to the clerk of the court from which it issued, with the proper return thereon, by the sheriff,'by the day appointed for the meeting of the court.77

It would appear from the reading of the above quoted section, that the clerk of the circuit court is the only person authorized to issue the venire facias notwithstanding the persons drawn and summoned are to appear for service as jurors in the city court of which he is not the clerk. And yet the duty is imposed upon the sheriff to return the order to the clerk of the court from which it issued. It will be readily seen that if this section was the only one regulating this matter, that some interpretation would have to be given to its language to avoid the apparent conflict shown in it. However, section 12 of the act which is in the following language: “That whenever any juries are drawn under this act, to serve in the city court of Selma, the clerk of the circuit court must furnish a list of persons so drawn to the clerk and register of the said city court, who must issue the necessary order to the sheriff as provided in section five of this act,77 etc., eliminates all confusion on this point and clearly empowers the clerk and register of the city court to issue the venire facias to the sheriff. It will be well to note that no prescriptive mode or method is provided as to how the clerk of the circuit court is to furnish the clerk and register of the city court the list of persons drawn to serve as jurors in the city court. All that is required of him, is that he furnish it. In the evidence offered upon the hearing of the motion to Yol. 125. .quash, it appears that the clerk of the circuit court is the authorized deputy of the clerk and register of the -city court. That as such deputy he issued the venire facias to the sheriff in the. name of and for the clerk and register of the city court, obtaining the names of the jurors placed thereon from the list of persons drawn to serve as jnrors for that term of the city court by the jury commissioners, of which he as clerk of the circuit court is the legal custodian. In our opinion the court committed no error in overruling the motion to quash.

The overruling of the motion for a new trial is not revisable here. The statute allowing appeals to this court from decisions granting or refusing to grant motions for new trials applies only to civil- cases at law. Code, § 434 and authorities cited under it.

Many exceptions were reserved by the defendant' to the introduction and exclusion of evidence by the court during the progress of the trial. However, it will serve no good purpose to review the rulings of the court in respect thereto, since all of them are manifestly nnmeritorious.

It is too plain to admit of discussion, that the court’s statement of the law governing the effect of the testirnonv introduced for the purpose of impeaching the witness, Louis Jackson, was not incorrect.

The other portions or parts of the oral charge of the court to the jury excepted to, -asserted correct propositions of law.

Written charges 1, 3, 6 and 7, given at the request oí the State, are substantial copies of 'charges 1, 2, 8 and 7 approved by this court in Wilkins v. The State, 98 Ala. 1, and reaffirmed in Miller v. The State, 107 Ala. 40. See also Martin v. The State, 77 Ala. 1.

Written charge 2 given at the instance of the State asserts a correct proposition of law. — Ex parte Sloane, 95 Ala. 22; Jones v. The State, 96 Ala. 102; Reese v. The State, 90 Ala. 624.

Charge M refused to the defendant was abstract, and should not have been given.

Charges E and N requested by defendant were flagrantly faulty, whatever else may be said of them, in ignoring tlie duty of the defendant to retreat. — Goodwyn v. The State, 102 Ala. 87, and authorities there cited.

We find no error in the record, and the judgment must be affirmed.