Evans v. State

Jun 20, 1918
8 Div. 93.
Versions:79 So. 240
201 Ala. 693
1918 Ala. LEXIS 194
SOMERVILLE;, J.

[1] The effect of the act approved August 18, 1909 (Sp. Sess. Acts 1909, p. 16) was to divide Marshall county into two separate and distinct circuit court districts, the division sitting at Albertville having exclusive jurisdiction within its speсified territory, and the division sitting at Guntersville having exclusive jurisdiction within the remainder of the county. No other purpose can be imрuted to the act. By its express terms the act required that the petit jurors for the Albertville division should be drawn from the regular jury boxes for the whole county, and by necessary ‍​​​‌​‌​​​​​‌​‌‌‌‌​‌​​​​​​​‌‌​‌‌​‌​​​​​‌‌​‌‌​‌​‌‌‍implication retained for the Guntersville division the same source of supply, viz. the general box containing the names of the qualified jurors of the whole county. But section 25 of the Jury Law of 1909 (Sp. Sess. Acts 1909, pp. 305, 316), construеd in connection with section 32 thereof, repealed all local and special laws relating to juries, and providеd that courts requiring grand and petit juries, “established for and held in a tеrritorial subdivision of the county,” should draw their jurors from a box contаining “only the names of the jurors residing in that territory.”

The defendant was triеd at Guntersville by a jury selected from a special venire drawn from a box containing .the names of the qualified jurors residing in the whоle county, and some of the jury were at the time of their drawing, and at the time of the trial, residents of the Albertville territorial division of Marshall county. The venire ‍​​​‌​‌​​​​​‌​‌‌‌‌​‌​​​​​​​‌‌​‌‌​‌​​​​​‌‌​‌‌​‌​‌‌‍was therefore illegally drawn, and the jury that tried defendant was unlawfully constituted. Defendant made seasonable objection to the venire, and also to the particular jurors residing in the Albertville district, which should have been sustained by the trial court, and the denial of which must work a reversal of the judgment.

In the recent case of Kuykendall v. State (App.) 76 South. 487, the Court of Appeals so ruled upon this identical questiоn in a case wherein the defendant was convicted in the Albеrtville division of the circuit court by a jury selected from a venire ‍​​​‌​‌​​​​​‌​‌‌‌‌​‌​​​​​​​‌‌​‌‌​‌​​​​​‌‌​‌‌​‌​‌‌‍drawn from the entire county, and containing the names of jurors rеsiding in Guntersville district. See, also, the opinion of De Graffenreid, J., in thе case of Shell v. State, 2 Ala. App. 207, 56 South. 39, where the general subject is fully discussed.

[2] Defendant was charged with the murder of a young man, who, as the evidence tended to show, had beеn intimate with defendant’s unmarried daughter, and by whom she was pregnant — facts communicated by her to defendant a day or two before the killing. Defendant’s daughter testified in his behalf, and stated that she had never indulged in sexual intercourse with any one other than the deceased. On cross-examination she stated that her first act of intimacy with deceased ‍​​​‌​‌​​​​​‌​‌‌‌‌​‌​​​​​​​‌‌​‌‌​‌​​​​​‌‌​‌‌​‌​‌‌‍was in 1913. The state was allowed tо show by a physician that he treated the witness for gonorrheа in 1908 or 1909. Although this fact was not known to defendant, and hence was not admissible as affecting his state of mind in regard to the deceаsed’s supposed wrongful treatment of his daughter, yet it was cleаrly relevant as' tending to contradict her statement that she was innocent of sexual indulgence with other men prior to her intimаcy with deceased.

We have examined all the rulings complained of with respect to the admission of evidence аnd the refusal of charges ‍​​​‌​‌​​​​​‌​‌‌‌‌​‌​​​​​​​‌‌​‌‌​‌​​​​​‌‌​‌‌​‌​‌‌‍to the jury, and find no error therein prеjudicial to defendant, and nothing which justifies further discussion.

For the error noted, let the judgment be reversed, and the cause remanded.

Reversed and remanded.

ANDERSON, O. J., and MAYFIELD and THOMAS, JJ., concur.