Lyman v. State

45 Ala. 72 | Ala. | 1871

PETEES, J.

The objection to the indictment in this case is not well taken. The indictment is in the form prescribed in the Code. .Such forms are sufficient.— Eevised Code, § 4141, p. 809, No. 14. The case of Trexler v. The State, to which the court has been referred by the appellant’s counsel, was decided before the promulgation of the Code, and it is not an authority in such a case as this.— 19 Ala. 21; Eevised Code, §§ 4109, 4112, 4120.

The constitution of the State secures to every person charged with a criminal offense, in all criminal prosecutions in this State, a public trial by due course of law.— Const. Ala. 1867, Art. 1, § 8. In such a trial, a 'jury is allowed. And the legislature has prescribed how this jury shall be selected. In this case, it appears that the regular panel was exhausted, and that the jury was still incomplete. Eleven jurors had been chosen, and there was one wanting to make the number twelve, required by law. The challenges of the State and of the defendant had been exhausted. Under these circumstances, a juror was regularly drawn for the purpose of completing the panel. And the bill of exceptions states “ that after being duly sworn,” he “ was asked by the court all the questions contained in sections 4180, 4182 and 4183 ” of the Eevised Code, by way of challenges for cause. And among other questions the court asked him the following : “ Have you a fixed opinion against capital or penitentiary punishment, or that a conviction should not be had on circumstantial evidence?” The answer was not fully understood by the court, and the question was put a second time, but before the juror answered, the defendant’s counsel interposed by saying, that the juror had answered that “ he would convict on circumstantial evidence, if strong enough.” And at the same time he asked the juror “if such was not the case?” Here the court stopped the counsel for the defendant, and again asked the juror the question as to circumstantial evidence. And he answered, that he “ would convict on circumstantial evidence, if strong enough.” “ Thereupon, the court ruled that he was competent, and he took his seat upon the jury.” The juror who had thus been selected had not yet been sworn in chief to try the issue joined, when the counsel for the State moved the court to set aside said juror “on the ground that he was incompetent and unfit to sit as a juror in said case.” To support this motion, the bill of exceptions makes the following recitals, to-wit: That the juror “had sworn positively that he would not convict on circumstantial evidence when first interrogated, and that then, on the suggestion of the defendant’s counsel, he said he “ would convict on circumstantial evidence, if strong enough.” As there was doubt in the mind of the court relative to said statements, the juror was again called forward, against the objections of the defendant, and sworn to answer questions; and the court then asked him what answer he had given to said question when first interrogated. And the juror said that he “ aimed to say that he would convict on circumstantial evidence, if strong enough.” The court then informed him that he must tell what answer he gave, and not what he aimed to give. He then answefed that he had “ made a blunder,” and “ did not say so, but meant it.” The court again told the juror that he must answer as to what he had said in answer to said question, when the juror said, “ I did say that I would, convict on circumstantial evidence.” Whereupon, the court excluded him from the jury, on the ground that it was the right and dutyt of the court to protect the State and the prisoner from, a juror who was unfit to sit on the jury, he having made three different and positive statements under oath relative to an answer made by him under oath to a question put by the court only a few minutes before, thereby showing to the court that he did not know his own mind or was willfully corrupt.”

■ The action of the court below in thus excluding said juror from the jury, was objected to by the defendant, and the objection reserved in his bill of exceptions. And this exception is now urged as one of the assignments of error in this court.

The powers of the courts and judges of this State are very broad, but they are not to be exercised without any limit, save the discretion of the presiding officer. — Revised Code, §§ 638, 637; Ex parte Walker, 25 Ala. 81; Withers v. The State, ex rel., 36 Ala. 252. But the selection and organization of a jury does not belong to these powers. This is not a matter of discretion, but a right regulated by law. — Const. Ala. 1867, Art. 1, §§ 8, 9,13 ; Brazier v. The State, June term, 1870 ; Revised Code, §§ 4062, 4063, et seq. In the enforcement of this right, both the State and the defendant may challenge a certain number of persons •brought forward as jurors peremptorily, or without cause, and any number for the cause specified in the Code. — Rev. Code, §§ 4178, 4179, 4180, 4181, 4182, 4183; Murphy v. The State, 37 Ala. 142. The question raised on this record is, when is the challenge for cause to be made, and can such a challenge be extended to other causes than those mentioned.in the Code? Most clearly, the right to challenge may be waived. — 37 Ala. 142, supra. And when it is waived by the State, and the juror is put upon the acceptance of the accused, and he is accepted by him as one of his triers, the process of his election is complete. This is what a regular compliance with the directions of the statute seems to demand. When this point of the proceeding is reached, it is the undoubted right of the defendant to have such juror sworn. This is the meaning and purpose of the statute, unless such person appears to the court ■to be an unfit person to serve on the jury under section 4184 of the Revised Code. But here the court not only excluded the juror, but excluded him for a cause of challenge not mentioned in the Code, after he had ■ been accepted both-by the State and by the defendant. Our predecessors have decided that such a practice can not be supported. It was, therefore, illegal and erroneous. — Stalls v. The State, 28 Ala. 25, and cases there cited.

Upon challenge for cause, the court is confined to the causes mentioned in the Code. The enumeration of causes there necessarily excludes all other causes not enumerated. This is equally a rule of sound exposition and of law. Then the court also erred in excluding the juror for other causes than those named in the Code. The unfitness of a person to serve on the jury over which the court has a discretionary power under section 4184 of the Revised Code, refers to a personal inability, and it is not a cause of challenge. It refers to a bodily deficiency, and not to a disqualification as a juror. — Revised Code, § 4184. If this had been intended as a cause of challenge, it would have been found put down in that portion of the law in which the causes of challenge are defined. It can not, then, be used for a purpose not intended by the law-makers themselves. This purpose can be best effected by referring it to personal incapacity, such as would induce the juror to desire to be excused on his own account, or such as would show him to be incapable of sitting through the trial; and consequently induce the parties on both sides to desire his absence from the jury, in order to avoid a mis-trial, by his breaking down before the trial could be ended.

The plea of former jeopardy should not have been stricken out. Former jeopardy, if true, was a legal answer to the indictment. — 1 Bish. Cr. Law, §§ 854, 855, 856, 857, 858, and cases cited. It is a plea to the jury, and it can only be disposed of on demurrer or by verdict of the jury. The State has no interest in convicting an innocent person. And when one is charged with an offense, after he is arraigned, he may plead such plea as is a sufficient answer to the charge, or the court will cause a plea to be pleaded for him. — Revised Code, § 4169. The plea is of no consequence unless it can be proved, and if it can, the defendant is entitled to be discharged. In criminal prosecutions, as it favors life and liberty, the most liberal latitude should be allowed the defendant. — .2 Burr Law Diet. p. 58.

Nothing is intended to be said in this opinion in reference to the sufficiency of the plea here pleaded, or of the facts necessary to sustain such a plea.

Let the judgment of the court below be reversed and the cause remanded for a new trial. And in the mean time, the defendant, said James Lyman, will be held in custody until discharged by due course of law.