51 Ala. 30 | Ala. | 1874
Tbe offence with which tbe prisoner was charged in this prosecution is tbe very grave crime of having carnal knowledge of a female under tbe age of ten years. Rev. Code, § 3663. Tbe defendant was convicted on tbe trial in tbe court below, and sentenced to be bung on Friday, tbe 22d day of May, 1874, which day is now passed ; and tbe execution of tbe sentence was suspended, for and until sixty days after tbe commencement of the then next ensuing term of this court.
The charge in this case involves the life and liberty of the accused. The right to life and to liberty are always regarded by the courts with the greatest tenderness'and care. They are to be favored. How is this to be done ? Certainly by a most liberal construction of all laws made for the trial, of persons accused of offences which are punished by a forfeiture of liberty, or with death. Actuated by this humane design of the law, in the case of Bell & Murray v. The State, at the January term of this court in 1873, it was settled that, “ on the trial of a felony, the defendant’s right to the peremptory challenge of a juror is to be kept open until the juror is sworn.” The bill of exceptions in this case — and it is by this that this court must be governed — shows that “twelve jurors had been drawn, and accepted, as they had been respectively put upon the defendant, and had taken their seats in the jury-box.” Two of these jurors were then challenged peremptorily, and the challenges were allowed, and their places were supplied by others from “the special venire.” The court then asked the accused “if he was now satisfied? ” This was before any juror had been sworn. The accused then responded to the inquiry of the court in these words, “ I have nothing to say at present.” This inquiry and answer were twice repeated. The court then directed the clerk to swear the jury, and eight jurors were sworn without objection. Then the clerk proceeded to swear Thomas J. Mayfield, who was one of the four remaining of those seated in the jury-box as above said, but who had not been sworn. As Mayfield rose from his seat to be sworn, the defendant challenged him peremptorily. His peremptory challenges were not exhausted. The court refused to allow the challenge, and put the juror upon the prisoner in spite of his objection. This was excepted to and made a part of the record. In this the court erred. Evidently, neither the court, nor the accused, understood the mere seating the jurors in the jury-box who had been drawn to be a final acceptance ; because two of them were permitted to be challenged, and removed from the jury, after this; and other persons were selected in their stead, apparently as a matter of course. This would not have been done, had it been understood and intended, by such practice, to have closed the opportunity to exert the right of challenge. Then, the practice thus far was not intended to be construed as a waiver of the right of challenge. And the further answer of the accused to the inquiry of the court, “ I have nothing to say at present,” was not an absolute waiver ,of the further right to challenge. His subsequent objection shows that he did not so intend it. If he did not, he should not to be held
The Code directs how the jury shall be selected for the trial of capital offences; but,it does not prescribe the manner and time of making the challenges allowed by law. Rev. Code, §§ 4177, 4178. Doubtless this was omitted because there was already a sufficient form for this purpose in use at common law, or that which had been derived from the English practice. Archbold, in his work on Criminal Procedure, lays down the practice to be this : “ Upon a full jury appearing, the prisoners who have been arraigned being at the bar, the clerk of the arraigns at the assizes, or the clerk of the peace at sessions, in cases of treason and felony, addresses the prisoners thus: ‘ Prisoners, these good men, who shall now be called, are the jurors who are to pass between our Sovereign Lady the Queen and you, and upon your (respective) trials ; if therefore you (or either of you, or any of you) would challenge them, or any of them, you must challenge them as they come to the book to be sworn, and before they are sworn, and your challenge shall be heard.’ ” 2 Archb. Cr. Pl. (Waterman’s ed.) p. 162, top. This formula, changed so as to insert “ The State of Alabama ” in lieu of the words “ our Sovereign Lady the Queen,” would suit our own practice; but it is not necessary that it should be used. It, however, shows that the right of challenge is to be kept open until the juror is sworn, or the oath or affirmation is tendered to him. Under the rule thus shown, a proper practice would be this: After the accused is arraigned, and the jurors summoned to try him have been called into court, to draw one as required by the statute, and, if he is not challenged by the State, or by the prisoner, he should be sworn, and put in the jury-box, under the charge of a bailiff of the court; then, a second name of the jurors summoned should be drawn, and, if not objected to, he should be sworn as before; and so proceed with the selection of one juror at a time until the jury is complete. 2 Archb. p. 162, supra; Rev. Code, §§ 4177, 4178.
For the errors above indicated, the judgment of the court below is reversed, and the cause is remanded for a new trial. In the mean time, the defendant (said Felix Drake) will be held in custody until discharged by due course of law.
