73 So. 141 | Ala. Ct. App. | 1916
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] Millard Mayo, alias, was convicted of a capital felony under § 7699, Code 1907, and he appeals. Reversed and remanded. Appellant was prosecuted for a capital felony under Code, § 7699. The record shows that the trial court made an order fixing the venire at 65 persons, pursuant to section 32, Acts 1909, pp. 318, 319. Forty-five persons were drawn and summoned for the regular juries of the week, thus necessitating the drawing of 20 additional persons by way of complement to satisfy the requirements of the court order. The trial judge *305 drew only 5 persons, thus putting the defendant upon a venire of 50, instead of 65, as fixed by the order of court.
(1, 2) It has been several times held that section 32 of the Jury Law (Gen. Acts 1909, pp. 318, 319) is mandatory in its requirement that in capital cases the trial court shall fix the number of the special venire, and that the defendant shall have the benefit of the number so fixed for the selection of his trial jury. — Jackson's Case,
(3) Since the cause must be remanded for another trial, we take occasion to animadvert upon the declaration of accused as to his purpose in going by the Pensacola crossing. What a person says upon setting out upon a journey is admissible as part of the res gestæ of that act or transaction as characterizing the purpose and object of the journey. — Maddoxv. State,
(4) The accused having taken the stand, he was liable to impeachment as any other witness, notwithstanding he had made no attempt to prove a good character. — Mitchell's Case,
(5) In view of the conflicting evidence, the affirmative charge was correctly refused.
For the error pointed out, the judgment of the court below is reversed, and the cause remanded for another trial.
Reversed and remanded.