Davis v. State

52 So. 939 | Ala. | 1910

EVANS, J.

The motion by defendant to quash the venire should have been sustained. When the names had been drawn out of the jury box for the trial of another capital case, they could not be restored to the jury box by the presiding judge, or any one else, and then drawn for the trial of defendant Avithout thereby making an illegal venire. It is the purpose of the law that the jury box shall be filled only by the jury commissioners at the time and in the manner prescribed by law, and whenever a name is draAvn therefrom for forming any jury, regular or special, that name can never be restored to the box except by the jury commissioners when they refill the box. No one else has authority to do so. “It is from the names, properly, rightfully, legally, in the jury box, the statute contemplates, so long as the box is not exhausted, the jurors forming the special venire shall be drawn.” It is immaterial whether the names were intentionally put back in the jury box and mingled with those already in there, or whether, as the admitted facts show, they were put in an envelope and were shaken out with the other names, when the box was shaken. In either case they were improperly in the box and formed no part of the names therein from which a legal jury could be drawn. The court made an order for 50 names to be drawn from said jury box as special jurors for the trial of the case against the defendant, and, if several of the names thus wrongfully and illegally in the box were drawn and made to constitute a part of said 50 names so drawn, then defendant did not have a special venire drawn “from the names properly, rightfully, and legally in the jury box, and the venire was not such as the law provided he should have.”- — Wilkins v. State, 112 Ala. 55, 21 South. 56; Cawley v. State, 133 Ala. 128, 32 South. 227; Jimmerson v. State, 133 Ala. 18, 32 South. 141. The motion, having been made before the trial was entered upon, was in due time, and the fact that defendant failed to object to' said jurors at the time they were drawn, and his attention was called to the fact, can make no difference. He could make the motion at any time before the trial was entered upon. — Mayfield’s Dig. vol. 1, p. 533, §§ 317, 318, and cases there cited.

The court excused two of the jurors who were summoned for the week of the court that this case was set for trial, upon the ground that to .serve would work a great injustice to them by closing up their business. The defendant was not present in court when this was done, nor did he consent thereto. This ivas made one of the grounds for motion to quash the venire. Chief Justice Stone, in the case of Fariss v. State, 85 Ala. 4, 4 South. 680, says, in speaking of the rule laid down in Parsons v. State, 22 Ala. 50, and of the criticisms of such a practice by the court as the matter now being discussed in the cases of Phillips v. State, 68 Ala. 469, and Shelton v. State, 73 Ala. 5: “This question, however, -has been twice decided the other way, and we will treat it as settled. — Floyd v. State, 55 Ala. 61; Jackson v. State, 77 Ala. 18. We do this not reluctantly, because the rule asserted in Parson’s Case is exceedingly inconvenient in practice, and it is believed that it accomplishes no good result. It must be presumed .that judges,- in excusing jurors, act on correct principles, and discharge them only for good and sufficient reasons.” Upon this authority we hold that this ground of the motion to quash was not well taken.

The bill of exceptions states that when the jury was being drawn or selected from the venire for this trial, the name of one “Bowing” was drawn and called, and in answer to said name one “Bowen” appeared as the man who had been summoned under that name; that the court discarded the name against objection and exception of defendant. The court in doing this acted within and according to the plain mandate of the law. —Code 1907, § 7267. The bill of exceptions does not purport to set out all that was done, and this court will presume that the court complied with said section of the Code in .supplying his place.

The bill of exceptions does not purport to set out all of the evidence. We cannot therefore say that the court erred in allowing the witness Monroe Jowers, against the objection of defendant, to testify as to the confession of defendant at the preliminary trial before the justice of the peace, on the ground that it was not shown to be voluntary. The said confession having been made during the preliminary trial, while defendant was testifying for himself, it will be presumed that his testimony Avas taken down in writing by the trial justice as the law directs, and the objection to the parol evidence of his confession should have been sustained, unless a proper predicate for the admission of secondary evidence was first laid, by showing that in fact it was not taken doAvn, or that it had been lost and could not be found after diligent search as the laAv directs. — Davis v. State, 17 Ala. 417; Code 1907, § 7600; Mathews v. State, 96 Ala. 62, 11 South. 203; Sanford v. State, 143 Ala. 78, 39 South. 370.

If the confession Avas voluntary, it was competent for thé court to allow the Avitness Lucius Body to tell the entire confession, as it Avas all a part of the res gestae, and that part wherein he told of striking the little boy Avith the gun was properly allowed over the objection of defendant. — Smith v. State, 88 Ala. 73, 7 South. 52.

For the errors pointed out, this case is reversed and remanded.

Reversed and remanded.

Anderson, Mayfield, and Sayre, JJ. concur.