Evans v. State

80 Ala. 4 | Ala. | 1885

CLOPTON, J.

Founded on the gravity of the crime charged, and on the serious consequences to the accused that result from a conviction, special statutory provisions are made for drawing, summoning and empaneling jurors for the trial of a person indicted for a felony, that may be punished capitally. The purpose of such enactments is to secure a trial by an impartial jury; and they manifest an intention to guard the rights of the accused, and to afford protection so far as the proper administration of the criminal law will justify. In furtherance of this humane purpose, section 4874 of the Code provides, that in such case, the court must make an order, commanding the sheriff to summon not less than fifty, nor more than one hundred persons, including those summoned on the regular juries for the week or term, when the term does not exceed one week. Under this statute, the sheriff exercised a discretion as to the persons, other than the regular jurors, whom he would summon.

By the special act “ to regulate the drawing and empaneling of grand and petit jurors in Dallas county,” this discretion is taken from the sheriff. The act provides, that the court must make the order required by section 4874, and shall then, in open court, cause to be drawn from the jury box the number of names required, and cause a list of the jurors thus drawn, and of the regular jurors for the week, to be forthwith served on the defendant. On the day set for trial, the court is required to enquire into and pass upon the qualifications of the persons summoned who appear, and cause the names of those held competent to be placed on lists, from which the defendant strikes two names and the solicitor strikes one, and so continue, until only twelve names remain, who constitute the jury. The manifest operation of these provisions is, to create and preserve the entirety and unity of the proceedings in empaneling a jury, from the making of the order, to the actual selection of the jury. The statute contemplates, that it shall be a proceeding in the particular case, individualized and separate from all other criminal cases pending in the court.

The constitution guarantees to the defendant a trial by an impartial jury. The legislature provides the modes, by which this right shall be secured and enjoyed. By the statute under consideration, a jury must be selected fr.om the lists caused to be prepared after the court has inquired into and passed on the qualifications of the persons summoned and present. When only twelve names remain, the right to strike or challenge ceases. Under the statutory regulations, it is the right of the defendant to have a jury selected from all the persons summoned as special and regular jurors, who are in attendance and competent, only subject to any contingency and necessity, that may arise from the operation of the statutory provisions. For instance : In Kimbrough v. State, 62 Ala. 248, it was held, that the court need not delay empaneling a jury, when one or more of the regular jurors are on the venire served on the defendant, are engaged in the consideration of another case, and can not come into court voluntarily, nor be brought in without disregarding the rights of some other persons, equally entitled to the consideration of the law. The ruling is founded on the presumption, that when the legislature provided, that the regular jurors in attendance should constitute a part of the venire, it was contemplated that some of them might be engaged in the trial of another cause, and that the right of the. defendant to have such regular jurors called is subject to the due administration of the law, and does not operate to delay or obstruct the business of the court. But where the trials of two persons, indicted for separate capital felonies, are set on the same day, and the same persons are drawn and summoned as special jurors for both trials, should one or more of them be engaged in the consideration of the case of one of the accused, while a jury is being selected for the trial of the other, the court would be unable to comply with the statutory requirement to “cause the names of all those whom the court may hold to be competent jurors” to be placed on the lists, from which the defendant and the solicitor must strike. The necessity in such case does not arise from the operation of the statute, but is created by the act of the court — by the manner in which the special'jurors are drawn.

The order of the court for summoning jurors, drawing the number of names required as special jurors, the service of the venire on the defendant, enquiring into and passing on the qualifications of the persons summoned, and causing the lists of those competent to be prepared, are all preliminary and necessary proceedings to a legal trial. If a trial is had, its inception, in legal contemplation, is in the order made as required by section 4874 of the Code. ¡Such order can not be made jointly for the trials of two defendants, charged with distinct felonies; and separate orders can not be followed by a joint drawing from the jury box of the requisite number of names as special jurors. The requirements are, the court must make such order, “and shall then, in open court, cause to be drawn from said jury box the number of names required.” The statute contemplates and provides for a separate drawing, as well as a separate order. The intention of the statute is to provide for the trial of one defendant, or of two or more defendants jointly indicted — of one case — and preserves the singleness and continuity of the antecedent proceedings. At no stage, should they be complicated or connected with the proceedings in any other case. A joint drawing of the names of persons to serve as special jurors for the trial of two persons separately indicted is, to that extent and for that purpose, a consolidation of the two cases. The provisions of the statute are mandatory, and must be obeyed as expressed. Error is clearly shown, and it does not affirmatively appear there is no injury. The defendant has not been tried by a jury drawn as required by the statute, and this is a reversible error.

While it may be true, that mere taking unawares, or a sudden snatching a thing from the hand of another is not robbery, if the snatching be accompanied with violence, or such demonstrations or threats as to create a reasonable apprehension of bodily injury, or creates resistance however slight, the offense is committed. The evidence of the witness from whom the satchel was taken, if believed, shows that violence was used. All the instructions requested by the defendant have a tendency to divert the attention of the jury, or to withdraw from their consideration the evidence of material facts. Being misleading, they were properly refused. — Jackson v. State, 69 Ala. 249.

Conceding that the use of the defendant’s person, and that by the solicitor, in the presence of the jury, as an illustration, is improper, the record does not show that the court made, or was asked to make any ruling on the objection. The exception is to the act of the solicitor, and not to any decision of the court. The question is not properly reserved for review.

The question, as to the order for the service of the venire, and its service on the defendant will probably not arise on another trial.

Reversed and remanded.