Dotson v. State

62 Ala. 141 | Ala. | 1878

BRICKELL, C. J.

It is the duty of the judge of probate, sheriff, and clerk of the circuit or city court, at least twenty days before tbe bolding of each regular term of tbe circuit or city court of tbe county, or a majority of them, to draw from tbe box containing tbe names of the jurors, tbe names of eighteen persons to serve as grand jurors, and of thirty persons to serve as petit jurors, eacb week of tbe term. — Code of 1876, §§ 4738-9. Specific directions as to tbe manner of drawing the jurors are prescribed, and of these is: “ One of them must publicly draw out of the box, in the presence of tbe others, eighteen names for tbe grand jury, if the drawing is for a regular term, or for a special term at which a grand jury is required - and tbe requisite number for petit jurors,” &c. — Code of 1876, § 4740. Tbe challenge to tbe array, as it is termed in tbe bill of exceptions, and motion to quash tbe venire for tbe petit jury, made by tbe appellant in tbe circuit court, is rested upon tbe ground, that tbe officers “ drew tbe grand and petit jurors at tbe same time, and as tbe names of tbe jurors were taken from tbe box placed them alternately on tbe grand or petit juries, according to their respective localities and standing in tbe county.” The qualifications of grand and petit jurors are in all respects tbe same — eacb must be “ a resident house-bolder, or freeholder of tbe county, of tbe age of twenty-one years,” competent to discharge tbe duties of grand, and petit jurors “ with honesty, impartiality, and intelligence, and esteemed in tbe community for tbeir integrity, fair character, and sound judgment.”— Code of 1876, §§ 4732-33. Tbe statute contemplates that tbe drawing of grand and petit jurors shall take place at tbe same time; but in this respect, and in all its provisions prescribing tbe duties of tbe judge of probate, clerk, and sheriff, “in relation to tbe selection, drawing, and summoning of jurors,” it is declared directory. — -Code of 1876, § 4759. Whether tbe grand or petit jury is first drawn, is not material; no person not competent to serve on either jury can be selected, whether the one or tbe other precedes in point of time in tbe drawing. And as tbe qualifications of the jurors are tbe same, it can not be material that tbe officers, as tbe names were drawn, placed them alternately on tbe one panel or tbe other. Thereby, a distribution of the grand jury to tbe different parts of the county, may have been more certainly secured than if tbe grand jury bad been first drawn.Tbe statute does not command that tbe grand jury shall be first drawn, and it is no ground of objection to the panel of either grand or petit jurors, no unfairness being imputed to tbe officers drawing, that they drew grand and petit jurors at tbe same time, or at different times, or pursued the course which was observed in tbe drawing of the jury challenged by the appellant. — Bowls v. State, 51 Ala. 18. When, at common law, the petit jurors selected were unexceptionable, it was not matter of objection that others equally unexceptionable were excluded. — People v. Jewett, 3 Wend. 314. When petit jurors, free from challenge for cause, are drawn and selected by the proper officers, all the purposes of the law are satisfied.

2. Construed in connection with and in light of the evidence, the charges requested by the appellant were properly refused. The rule of the common law, of very general application, is that there can be no crime, when the criminal mind or intent is wanting. When that is dependent on a knowledge of particular facts, ignorance or mistake, as to these facts, honest and real, not superinduced by the fault or negligence of the party doing the wrongful act, absolves from criminal responsibility.— Gordon v. State, 52 Ala. 308; Squire v. State, 46 Ind. 459, (S. C. 2 Green. Cr. Rep. 725). The principle is thus stated by Bishop : “ The wrongful intent being of the essence of every crime, the doctrine necessarily follows that, whenever a man is misled without his own fault or carelessness, concerning facts, and, while so misled, acts as he would be justified in doing were the facts as he believes them to be, he is legally innocent, the same as he is innocent morally.” — 1 Bish. Cr. Law, §_ 303. The belief must be honest and real, not feigned, and whether it is honest or feigned, the jury must determine in view of all the evidence. Whether there was fault or carelessness in acquiring knowledge of the facts, is also a matter for their determination. No man can be acquitted of responsibility for a wrongful act, unless he employs “ the means at command to inform himself.” Not employing such means, though he may be mistaken, he must bear the consequences of his negligence. If he relies on information obtained from others, he should have some just reason to believe that from them he could obtain information on which he may safely rely. It does not appear that the persons informing the appellant of the death of his first wife, had any opportunities of knowing the fact, he did not have, nor on what their knowledge of the fact was based— nor was it shown that he made inquiries of persons who, from their relationship or acquaintance with the wife, would have known whether she was living or dead. Bigamy is a violation of positive law, disturbs the peace of families, offends the good order of society, and involves the legitimacy of children, the descent and succession to estates. A degree of diligence commensurate with the importance of the act — • a second marriage, having had a former wife, not so long absent and unheard of, that the law presumed her death, the appellant should have exercised. The charge requested, ■withdrew from the consideration of the jury, the important inquiry, whether the belief of the death of the first wife was reasonable, and of the diligence the appellant had exercised to inform himself of the fact.

The second charge, without explanation, would have misled, or was well calculated to mislead, the jury. It would have induced, or is calculated to have induced, the belief that some other intent than that which must be inferred from the second marriage, knowing the first wife to be living, or not having a reasonable belief of her death, was an ingredient or element of the offense. A charge requested, which requires explanation or qualification, or which has a tendency to mislead or confuse the jury, should always be refused. There is no legal right to such an instruction. The charge in itself, when applied to the facts, is erroneous. A criminal intent is generally an element of crime, but “ whatever one voluntarily does, he of course intends to do,” and whenever an act is criminal under particular circumstances, the party doing the act is chargeable with the criminal intent. — Com. v. Mash, 7 Metc. 472 ; Reynolds v. U. S. 98 U. S. The appellant knew he had been once married — that the marriage had never been dissolved — that his wife had not been so long absent a presumption of her death could be indulged, and by the .slightest diligence could have ascertained she was living within a few miles of him. A second marriage was a violation of the law, and he must be presumed to have intended the violation. We are satisfied no error was committed by the Circuit Court, and the judgment is affirmed.