Gerald v. State

128 Ala. 6 | Ala. | 1900

HARALSON, J.

1. Until one summoned as a juryman to try a-cause has been sworn as such, he does not become a juryman to try it. The fact that Teasley, who had been ascertained and accepted by each party us a ’proper juryman, before he was sworn, and while the preliminary siteps were being taken to select and complete a jury, had been allowed by the court to step to another part of the court-house, did not constitute a ground for the discharge of the jury after it had been impanneled. nor did it operate to discharge the defendant, as moved for :by him on the ground that there had been a separation of the jury.

2. While ¡the selection of the jury was proceeding the names of Certain jurors were drawn who had served during the term upon other juries in the trial of other and distinct murder cases, having no connection in anywise with this case, wherein verdicts of guilty against the defendants therein were returned, and the defendant herein separately submitted challenges for cause of each of such jurors so called, and the court refused to allow each of such challenges. On the same ground, the defendant objected to being tried by said ven-ire, and challenged the entire panel of jurors. These motions the court separately overruled, and defendant excepted. We fail to see any merit in either of said motions, and the court very properly overruled them.

3. On the 17th July, 1900, the defendant being present, the cause was set for trial on the 2d of August following, and 100 jurors including the regular jurors summoned for the week in which the cause was set for trial, were ordered to be summoned by the sheriff for the trial of the case, and a list of the names of said 100 jurors were ordered to he served on the defendant forthwith, the defendant in open court acknowledging that lie had been served with a copy of the indictment in the cause; and the names of the special jurors were drawn from the jury box in open court in the presence of defendant. On tlie 3d of August, 1900, the cause having been continued -or laid over front the day before, — -ithe 2d of August, — till that day, the defendant not being-ready for trial, it was ordered by tire court that the trial be and the same was'seit for August 13th, 1900, and it was further ordered that the special jurors theretofore drawn for the trial, and the regular j uxors summoned -for the week of the court in which the cause was originally set for trial, — the week in which the 2d of August fell,' — should appear in court on said 13th of August, 1900, — the following week, — for the trial of the cause, to which action of the court, the defendant objected and excepted. The ground of objection as stated was, “that the court had no authority to continue the regular jurors summoned for one particular week over into another iveek of the same term, unless engaged at the time in the trial of a'cause which had been submitted to them,” but defendant “made no objection to the order of the court requiring the jurors to return as the venire to try the case.” There was no error in overruling this objection. It was not questioned that the jury was properly made up for the week in which the trial was originally set. It was composed of 100 jurors, including the regular jurors summoned for the iveek in which the cause was set for trial, which was the week subsequent to the one when the order setting- the case was made and entered. The jury was, therefore, the one ordered, for the trial, set for the 2d of August, the very jury provided by the terms of the act, “To more effectually secure competent and well qualified jurors in the county of Montgomery.” Acts, 1886-7, p. 190, § 10. “The fact or a-ccident by which the trial was not entered upon until a day during the succeeding week, could not properly ■render it necessary that a new order should be made, setting another day for the trial, or, that a new venire should be summoned or served on the defendant.” The case was, under the orders of the court, merely passed or laid over from one day to another, from the 2d of August, the day it was set for trial, until the 13th of that month, — in the succeeding week, — which was not improper to be done. — Thomas v. State, 94 Ala. 74.

4. The deceased received pistol shots from the defendant, each of which the evidence shows was necessarily fatal, and from which he died the following day. Ur. Anderson, the physician who was called to -see him, being examined by the State, was asked, “Did the dead man, prior to his death, make any statement to yon concerning .his killing?” The doctor testified that at that time deceased was in extreme condition of profound shock or collapse, and was unable to stand up. The question was objected to because not admissible as dying declarations; but the court allowed him to answer, that deceased said to him, “The dirty cur killed me for nothing.” The evidence afterwards further showed, that deceased had said (to defendant), “It is no use shooting me any more, I am going to- die anyhow.” This last declaration was after he was shot, and before the statement made to Dr. Anderson. The declarations of the deceased touching the homicide, although he does not state at (the time that he is conscious of impending death, if made under such circumstances as in the judgment of the court will warrant an inference, are admissible as dying declarations. The declarations made by the deceased to the physician were properly admitted in evidence. They showed very conclusively that deceased felt that he was fatally shot and would die. — McLean v. The State, 16 Ala. 672; Blackburn v. The State, 98 Ala. 65; Justice v. The State, 99 Ala. 180; Ward v. The State 87 Ala. 441.

,We find no error in the record, and the judgment -and sentence of the city court are affirmed.

Affirmed.