Kimbrough v. State, 62 Ala. 248

Kimbrough v. State

62 Ala. 248 | Ala. | 1878

MANNING, J.

Appellant was charged with the murder of one Henry Lett, and among the persons of the venue summoned to compose a jury to try him, of which a list had been duly served, were, as the statute directs, those who belonged to the regular juries of the week ; and, in drawing out the names, the third and others were some of these, who *250were then in a room in the court-house engaged, as members of a jury, in the consideration of another criminal case, which had been committed to them, under their oath, to render a true verdict therein. The judge, therefore, ordered their names, as they were respectively drawn, laid aside, and that others be drawn in their stead. To this course, the defendant objected, and insisted that they should be called from the jury room as their names were drawn, and put upon the parties for acceptance or rejection; which being refused, defendant excepted. And the names of all who were originally summoned having been exhausted before the jury was complete, and those who were in the jury room not having yet returned, it was ordered that an additional number be summoned from the bystanders, or others, according to the statute, for the completion of the jury; to which, also, defendant duly reserved an exception. And it is insisted that the objection of defendant should have been allowed, and the business of the court suspended until the jury then out returned into court, and were discharged of the case committed to them.

The constitution gives to the person indicted the right to a trial “by an impartial jury.” How this shall be constituted, it is left to the legislature to provide. To this end, it was enacted, among other things, that for the trial of a capital case, there shall be summoned to select from “not less than fifty nor more than one hundred persons, including those summoned on the regular juries for the week.” — Code of 1876, § 4874. A list of these is to be delivered to defendant, if he is in confinement, one entire day before the trial. — § 4872. If the persons summoned as jurors fail to appear, or if the panel is exhausted by challenges, neither the defendant nor his counsel is entitled to a list of the persons summoned to supply their places.” — 4873. “A mistake in the name of any person summoned as a juror for the trial of a capital offense, either in the venire, or in the list of jurors delivered to the defendant, is not sufficient to quash the venire, or to delay or continue the trial, unless the court, in its discretion, is of the opinion that the ends of justice so require. Others are to be “ forthwith summoned to supply their places.” — § 4876. And “ any person who appears to the court to be unfit to serve on the jury, may be excused on his own motion, or at the instance of either party.”— § 4885. If all the slips of paper containing the names of those first summoned are drawn, “and the jury is not made up, the court must direct the sheriff to summon at least twice the number of jurors required to complete the jury, *251whose names are also to be written on slips of paper, deposited and drawn.” — § 4878.

These enactments manifest a desire to favor the accused in the circumstances provided for, so far as the due administration of the law will permit, but not to such an extent as “ to delay or continue the trial,” or obstruct the business of the court. It is presumable that when the legislature authorized the summoning of “ the regular jurors in attendance ” among the number, not less than fifty nor more than one hundred, above mentioned, it contemplated that some of those regular jurors might, at some time when their names were called, be engaged in the trial or consideration of another cause, from which they could not, without a violation of law and of the rights of other parties, be discharged or brought into court, or voluntarily come themselves. — 1 Bish. Cr. Pr. § 995. See, also, Clark’s Man. of Cr. Law, pp. 450-51. Being thus kept away, the contingency has happened, when other persons should be summoned to supply their places.

Any other construction than this of the statutes would often produce the stoppage, in such conjunctures, of all the important remaining business of the court. For, if it must idly wait until the jury out shall agree on a verdict and bring it in, the term’ during which the court may lawfully remain in session might expire, or so much of it be wasted that other causes could not be tried, and those interested in them, perhaps innocent persons impatient for a trial, be consequently kept in prison six months longer, until the court shall again be holden. Consequences so oppressive could not have been intended by the legislature; and its enactments should not be so construed as to produce them. It is a case in which the maxim, argumentum ab ivconvenienti plurimum valet, is applicable. — 11 Meeson & W. 928-9; 10 id. 434.

The judge did not err in ordering the drawing for jurors to proceed.

Nor was there any error in the refusal to charge, in this case, as requested, or in the charge given which was excepted to.

A slayer cannot urge, in justification, a necessity produced by his own unlawful and wrongful act, as a valid reason why he may lawfully kill his adversary. — Eiland v. State, 52 Ala. 332; Lewis v. State, 51 Ala. 1; Clark’s Man. of Cr. Law, § 377 et seq., and cases there cited.

Let the judgment of the circuit court be affirmed.