Floyd v. State

55 Ala. 61 | Ala. | 1876

MANNING, J. —

The special term of Geneva Circuit Court, at which the indictment in this cause was found, was held in pursuance of the “ act to provide for holding special terms of tbe Circuit Court,” approved February 13, 1875._ By it, are given tbe same power, jurisdiction and authority, at a special term, “to organize a grand jury, and to try and dispose of all causes that may come before said court, both civil and criminal, and to do and perform all tbe business of such court, as at a regular term of such court.” Tbe objection raised to tbe finding of tbe indictment at a special term of tbe court, or at a term not authorized by law, is not sustained. The indictment is in tbe form prescribed by tbe Bevised Code, and is, therefore, sufficient.

2. Section 4173 of tbe Bevised Code requires, for tbe trial upon indictments charging a capital offense, that an order be made, “commanding the sheriff to summon not less than fifty, nor more than one hundred persons, including those summoned on the regular juries for t£e week,” from which to constitute a jury to try tbe accused. Persons who were summoned for regular jurors, but did not appear, or who, appearing, were for some cause excused, or who, because tbe regular juries for tbe week were completed before their names were drawn out, were discharged, and departed from tbe court, although “summoned,” cannot be said to be “on tbe regular juries for tbe week.”- Tbe expression used in tbe statute is ambiguous and incorrect. "What is meant by it, is shown by section 4177 : “ On tbe trial of a person charged with a capital offense, tbe names of tbe jurors summoned for bis trial, as well as the names of the regular jurors in attendance, must be written on slips of paper, folded or rolled up, placed in a box, or some substitute therefor, and shaken together; and such officer as may be designated by tbe court must, in bis presence, draw out tbe slips, one by one, until tbe jury is completed,” &c. Evidently, therefore, it was “the regular jurors” who were “on tbe regular juries for tbe week,” and not those who bad been summoned to compose them and excused, that were to be included in tbe fifty or more persons, from which a jury to try tbe accused was to be constituted. And even this direction, that tbe regular jurors be included in tbe list, is not founded on any idea of benefit to tbe accused, but of convenience to both tbe sheriff and citizens; which would be consulted, by having tbe jury co pposed, as largely as a due regard to tbe attainment of impartial justice would allow, of the jurors who were already in court, and held there for the transaction of its business. It could not be assumed that these persons would be any more favorably disposed toward tbe accused, than any bke number of other citizens would be. Tbe objection of prisoner’s counsel to tbe omission from tbe list served on bis client, of tbe names of those who bad been summoned to compose tbe regular juries, but were not serving on them, is, therefore, disallowed.

3. Tbe only other question in this cause relates to an error in writing, in the list served upon the prisoner, the name of one of the persons summoned — “Atkinson,” instead of Adldson. In respect to such a case, the statutes make express provision; and in. compliance with section 4175 of the Revised Code, the name of this person was taken out of the box, and another person summoned, whose name was substituted in its place.

The judgment of the Circuit Court must be affirmed.