102 Ala. 101 | Ala. | 1893
Lead Opinion
It has long been the general law .of this State that only freeholders and householders of the county are competent to do jury duty. Hence it was ground of challenge for cause if the person offered for such service was neither a freeholder nor a householder. But the act “To more effectually secure competent and well qualified jurors in the county of Montgomery,” has, it is contended, changed that rule, so far as that county is concerned. — Act approved February 21, 1887 — Sess. Acts 1886-87, p. 190. In section 3 of that act it is declared that the jury commissioners shall select the “jury list” from “the male residents of the county over twenty-one and under sixty years of age.” ' The presiding judge held that the qualification of “freeholder or householder” was no longer requisite for jury service under the statute ; and to this ruling defendant excepted. '"We refer also to act approved December 4, 1888, Sess. Acts, 1888-89, p. 139 ; Séss. Acts 1892-93, p. 917. '
Our, attention has been directed to Iverson v. The State, 52 Ala. 170, as being opposed to these views. Some expressions found in the majority opinion in that case; if considered without reference to the state of the statutes on which, they were pronounced, give a seeming support to this contention. But the statutes were entirely .differ-; ent from those which must-control the question we llave in hand. This will be made plain -by a brief reference to the statute law, as it existed before, and when-the statute which gave rise to that discussion was enabled — - December..31, 1868.- Sess. Acts, 1868, pp. 550-1.
■ Who were competent grand and petit jurors, and''the: mode of ^electing thfem, before, and up to the,enactment of,, that statute, had been made known by sections 4062-3, of the Code of 1867. Section 4062 declared who. should.be placed: "on. the list from'which the- selection.'
The jury law for Montgomery county, approved February 21, 1887 — Sess. Acts, 1886-87, p. 190-^has very different provisions. It does not refer to any section of the Code,, and does not express any intention to amend or repeal any% former law, save in its last section, 18. It declares, “That section (4732) four thousand seven hundred and thirty-two of the Code of Alabama, and all other laws and parts of laws, general and special, conflicting with the provisions of this act, be,'and the same áre hereby repealed ; but all laws now in force in relation to jurors, their drawing, selecting or qualification, not in conflict with this act, are hereby continued in full force and effect.”
Now, what is section 4732 of the Code of 1876, the
The statute of February 21, 1887, created a board of revenue for Montgomery county, and constituted it a board of jury commissioners. The sheriff, judge of probate and clerk of the circuit court are relieved of all duties in obtaining a list, selecting suitable persons for jury service, and drawing juries, alike grand and petit. These duties are transferred to the board of jury commissioners. Sections 3, 4 and 5 of the act contain the directions. Section 3 commands, “That said commissioners, at such meeting, shall select from the male residents of the county,-over twenty-one and under sixty years of age, the names of all such persons, not exempt from jury duty, as, in their opinions, are fit and competent to discharge the duties of grand and petit jurors, with honesty, impartiality and intelligence.”, Sections 3, 4 and 5 then proceed to declare the further duties of the jury commissioners in preparing lists of the jurors selected, in drawing juries for the several courts from the'list of “male residents of the county,” &c. The words, “freeholders and householders,” are no where mentioned in the statute ; and section 4299 of the Code of 1886, being, as we have shown, expressly repealed as to Montgomery county, it follows that those1 qualifications cease to be essential to the eligibility of jurors ih that county.
We apprehend that under the act we are construing— February 21, 1887 — no oue will deny that “the male residents of the county [Montgomery] , over twenty-Qpe,
When the court rejected S. A. Wood as a juror, because his name did not appear on the list of the ■ venire which had been served on the defendant, the presiding judge proceeded at once to supply his place, by drawing another name from the jury box, and placing it in the box or hat from which the jury was to be completed. This was done before the panel had become exhausted; and the defendant excepted to this action. There was
The drawing in this case to supply the place of the juror Wood, misdescribed in the notice served on the prisoner, was premature. Such drawing is not authorized, unless there is a failure to complete a jury of twelve from those who are summoned and who appear. It can not be known there will be such failure, until all the names are drawn from the box or hat, and the panel in that way exhausted. Nor does the statute give the presiding judge authority to pass over, or excuse any competent juror whose name may be drawn, unless stich person “resides more than two miles from the courthouse.” In drawing the juror at the time it is shown to have been done in this case, the city court erred. The statute should be conformed to. — Murphy v. State, 86 Ala. 45; Steele v. State, 83 Ala. 20.
Fearing our silence might be misinterpreted, we will ' add, that the names of the jurors, Smilie and McCullough, appear to have been so imperfectly set forth' in the notice of the venire served on the defendant, that defendant's motion to reject them should have prevailed; This, however, would not necessarily lead to a quashal of the venire.
The record is not very clear as to the reason why the' juror, W. C. Parks, was not summoned. If it was be- ' cause he was supposed, or even known, to be exempt, or. disqualified, that was not sufficient excuse for the sheriff to fail to summon him. That was a question for the court to consider of.
The court also charged the jury as follows : “Murder in the second degree is the unlawful killing of another with malice aforethought, without the premeditation and deliberation of murder in the first degree.” There can be ho question that the facts hypothesized in this charge would constitute murder in the second degree. Any homicide which would be murder at common law, if not attended by all of the aggravating circumstances enumerated in our statute as constituting murder in the first degree, is murder in the second degree. — Code of 1886, § 3725. “Willful, deliberate,, malicious and premeditated killing, ’ ’ constitutes one species of murder in the fii*st degree, under our statutory classification. To come within this class, all of these properties, or qualifying adjectives must be found to have co-existed. — Mitchell v. State, 60 Ala. 26. The absence of any one of them, unless necessarily implied in the facts proved and found to exist, would reduce murder to the second degree. Hence, the absence of “premeditation and deliberation,” as asserted in the charge, or the absence of either of them, would reduce the offense to the second degree. So, ■the absence of willfulness and maliciousness, or either of • them, unless, as we have said, necessarily implied in the facts found, would have the same effect. In charging on the subject we are considering, it would be well to state all the qualifying adjectives, for the absence of any one of them reduces the homicide below the grade of mu,rd¿r in the first degree, unless it falls within one of the other classes of murder in the first degree, such as poisoning,
The charges asked for defendant were,- each of them, rightly refused.
Reversed and' remanded.
Dissenting Opinion
dissenting. — The defendant was indicted and tried for murder and convicted of murder in the first degree. The question of importance is, whether it was good ground for challenge that the juror Niblett was neither a free-holder nor householder. Section 4331 of the Criminal Code, sub-division 1, provides that, “It is good ground for challenge by either party, — 1. That' the person has not been a resident householder or freeholder of the county for the last preceding year. ” It is conceded in argument that unless this provision is repealed by special act for Montgomery county, the trial court erred in refusing to allow the defendant to challenge the juror for cause.
The act of February 21st, 1893, p. 917 of the Acts of 1892-93, and the act of December 4th, 1888, — Acts of 1888-89, p.139 — and the act of 1886-87, p. 190, are not materially different, so far as they bear upon the question under consideration. Section 3 of the act of 1886-87 enacts, “That said commissioners, at such meeting, shall select from the male residents of the county over twenty-one, and under sixty years of age, the names of all such persons, not exempt from jury duty, as in their opinion are fit and competent to discharge the duties of grand and petit jurors, with honesty, impartiality and intelligence,” &c. ■ The act of 1888-89, supra, was amendatory of the act of 1886-87, but in no way altered 'the foregoing provision. The act of 1892-93, supra, seems to be an independent act, complete of itself. It makes no referance to any other act or law, either general or special, and the first section was evidently copied from section 3 supra of the act of 1886-87. Neither of the two later acts undertakes to legislate upon the right of challenge or prescribe or regulate the ground of challenge. It is not pretended that section 4331, sub-divi-sion 1, of the Code, supra, is expressly repealed, but the contention is, that the provision quoted from section 3
Section 4331 isas follows : “Challenge for cause. It is good ground for challenge by either party, 1st. That the person has not been a resident householder or freeholder of the county for the last preceding year.
2d. That he is not a citizen of Alabama.
3d. That he has been indicted within the last twelve months for an offense of the same character as that with which the defendant is charged.
4th. That he is cohnected by consanguinity within the ninth degree or by affinity within the fifth degree (computing according to the rules of civil law) either with the defendant or the prosecutor, or the person alleged to be injured.
5th. That he has been convicted of a felony.
6th. That he has án interest in the conviction or acquittal of the defendant, or has made any promise or given any assurance that he will convict or acquit the defendant.
7th. That he has a fixed opinion as to the guilt or innocence of the defendant which would bias his verdict.
8th. That he is under twenty-one, or over seventy years of age.
9th. That he is of unsound mind.
10th. That he is a witness for the other party.”
Here are ten enumerated statutory grounds for challenge, and they are none the less statutory because that some were grounds of challenge at common law. What argument can be presented that the first of the grounds for challenge was repealed, and the second and third
The enumeration of certain grounds of challenge in the statute in no way abolishes the common law right of challenge for cause, or the right to challenge for cause secured by the constitutional provision, “That the right of trial by jury shall remain inviolate.” — Brazleton v. The State, 66 Ala. 97; Smith v. The State, 55 Ala. 1; State v. Marshall, 8 Ala. 302. That a person was a member of the grand jury which preferred the indictment is cause for challenge, though not enumerated as a cause in the statute. — Birdsong v. The State, 47 Ala. 68.
In Bishop’s Criminal Procedure, section 852, it is said : “Not in all respects, it appears, are the disqualifying rules for grand jurors the same or so strict as for petit jurors.” Whether at common law a freehold interest was a necessary qualification for a grand juror is not clear, but we think it is clear, that at common law this was a ground for challenge for cause. Hawkins Pleas of the Crown, vol.' 2, chapter 43, section 12, p. 572, also chapter 25, section 21, and the cases cited, support the proposition, that the want of a freehold interest was ground for challenge for cause at common law. In the case of the State v. Easter, 30 Ohio State 549, the court uses this language: “It is claimed by counsel that the qualifications of a grand and petit juror are the same. The position is not tenable. Both must be good and judicious persons; both must be electors. But there are other requisites for the petit juror, not necessary for the other. The various laws on the subject lay down quite a number of causes for which the petit
We can not assent to the argument, that a statute which authorises the commissioners to select from the male residents of the county over twenty-one and under sixty years of age all such persons, as in their opinion, are fit and competent jurors, does or was intended, in the least, to alter the right of challenge secured by the constitution, the statute, or common law. We have numerous adjudications in our own court involving like principles.
Section 4299 of the Code of 1886 is the same as section 4732 of the Code of 1876, and is as follows: “It is the duty of the sheriff of each county to obtain biennially a list of all the householders and freeholders residing in his county, from which list must be selected, as hereinafter provided, the names of such persons, as may be thought competent to discharge the duties of grand and petit jurors for the county.” It will be seen that this statute prescribing the qualification of grand and petit jurors makes no reference to the length of time of residence in the county of the householder and freeholder. One who has resided any length of time in the county, who is a householder and freeholder, possesses the necessary qualifications for a grand or petit juror. The ground of challenge is (section 4331) that “the person has not been a resident householder or freeholder of the county, for the last preceding year.” No one has ever contended before that the section prescribing the qualification of jurors, repealed this right of challenge. Section 4299 makes no allusion to the age of the juror, all that is necessary is that he be a freeholder and householder of the county. The next section, 4300 of the Code of 1886, which was section 4733 of the Code of 1876, provides that “no person must be selected who is under twenty-one or over sixty years of age.” Notwithstanding this provision that no person
The case of Iverson, 52 Ala. 170, is a direct authority upon the very question at issue. We quote: “Although both statutes relate to some extent to the same subject matter, (the selection and qualification of jurors) , yet each has a separate and distinct field of operation. One provides for a general annual selection of persons to serve as grand and petit j urors; the other prescribes the grounds of challenge for cause of jurors drawn for the trial of criminal cases only. One is general in its provisions ; the other relates to a special class of cases. ” This is the principle upon which the decision rests, and is the true ground. It is a mistake to hold that the decision can be upheld on the ground that the act of 1868, amendatory of section 4063 of the Code, did not vary the qualifications of jurors as provided in another section of the Code. The amendatory act of 1868 has this provision: “ Provided, that all the qualifications and restrictions with regard to competency and qualification in the selection of jurors as is noiu required by law in this section, shall be strictly observed by said officers.’’ The opinion and conclusion in the Iverson Case, rest upon the proper principles, and is sustained by authority and well recognized principles, to be applied to the construction of statutes.
We have considered the question at some length because of the effect of the decision of the court upon the general jury law of the State. The act of the legislature of February 28th, 1889 — Acts 1888-89, p. 77 — amendatory of the general jury law of the State, has a provision precisely similar to section three of the Montgomery act; and. if the same rule of construction is to be ap
In my opinion the majority of the court has failed to observe the distinction between a statute intended to prescribe the qualifications requisite for grand and petit jurors generally, and a statute intended to apply to petit jurors solely, securing rights and privileges, which a person charged with a capital offense, at the time he is put upon his trial, may assert at his option for his benefit and protection in relation to the special juror summoned for the particular trial. The object and purposes of the two statutes are distinct, independent of each other and there can be no conflict in their application. The challenge for cause should have been sustained .