McElroy v. State

| Ala. | Dec 15, 1883

SOMERVILLE, L

The court, in our judgment, committed no error in overruling the motion made by the defendant to quash the venire. The ground of this motion was the failure of the sheriff to find one of the jurors whose name was > on the list of those drawn by the court and ordered to be summoned, in accordance with the provisions of the special law regulating the drawing and impanelling of grand and petit juries in the county of Dallas. — Acts 1882-83, pp. 273-278, 446.

It is one of the provisions of this law that where any person stands indicted in the city or circuit court of Dallas county for a capital felony, the judge shall make the usual order required by section 4874 of the Code, “commanding the sheriff to summon not less than fifty, nor more than one hundred persons, including those summoned on the regular juries for the week.” It is also made his duty, in open court, to cause to be drawn from a “ jury box ” provided for by the statute “ the number of names required, with the regular jurors for that week, to make the number named in said order,” and “shall cause an order to be issued to said sheriff to summon said persons therein named ” to appear in court on the day set for the trial of the defendant. — Acts 1882-83, § 4, p. 449. It is made a contempt of court if the sheriff negligently fail to summon any person on this list. — § *"7, p. 450. There is nothing in the statute, however, which provides for the contingency of a failure by the sheriff to find any one or more of this list of jurors.

The record shows that the court made an order allowing the defendant fifty jurors, including the regular jurors impanelled for the week, of whom there appears to have been twenty-nine. The list of additional jurors drawn, as required by the statute, and furnished to the sheriff to be summoned by him, contained twenty-one names. One of this list, a man by the name of Myers, he failed to find, after making inquiry for him at his usual place of residence, where he ascertained that Myers was absent from home on a visit to another county. The return of the sheriff showed that this juror -was not found. We are unable to see why this should be any ground for quashing the venire, especially in view of the offer of the solicitor, with the consent of the court, to place the name of the absent juror in the box, and when drawn to challenge him on behalf of the State. This offer, however, was unnecessary. It could not have been contemplated that the sheriff would always be able to find every juror whom he was ordered to summon. He must sometimes fail in the nature of probabilities. The court has literally pursued every step required by the statute, and the sheriff seems to have performed his duty properly. If the law operates unjustly in some cases, the remedy is for the legislative, and not the judiciary department.

""The confessions of guilt made by the defendant were clearly voluntary, and therefore admissible. They are shown to have been made free from the influence of fear or hope applied to the prisoner’s mind, and thus operating to induce them. The fact that the accused was under arrest at the time for the crime charged, as uniformly held, would not render his confessions inadmissible, whether made to an officer of the law or any other person.—Aaron v. The State, 37 Ala. 106" court="Ala." date_filed="1861-01-15" href="https://app.midpage.ai/document/aaron-v-state-6506848?utm_source=webapp" opinion_id="6506848">37 Ala. 106 ; Whart. Cr. Ev. §§ 647-672; Redd v. The State, 69 Ala. 255" court="Ala." date_filed="1881-12-15" href="https://app.midpage.ai/document/redd-v-state-6511129?utm_source=webapp" opinion_id="6511129">69 Ala. 255; Meinaka v. The State, 55 Ala. 47" court="Ala." date_filed="1876-12-15" href="https://app.midpage.ai/document/meinaka-v-state-6509342?utm_source=webapp" opinion_id="6509342">55 Ala. 47. We find nothing in the facts of this case bringing it wi-thin the rule declared by this court in Young & Griffin v. The State, 68 Ala. 569" court="Ala." date_filed="1881-12-15" href="https://app.midpage.ai/document/young-v-state-6511052?utm_source=webapp" opinion_id="6511052">68 Ala. 569, where certain confessions made by the prisoners were held inadmissible, because they were elicited by the terror of surrounding circumstances, suspicious and menacing in their character.

The evidence tends to show that the prisoner murdered his wife by wantonly striking her with an axe. The charge of the court, when construed, as it must be, in reference to the evidence, was unquestionably correct in declaring that the law presumes every person intends to do that which he does, and that the defendant must be presumed to have designed not only what he did, but also the necessary consequence of his act,' unless he could show to the contrary. This charge involves a settled and elementary principle of law. — 1 Green 1. Ev. § 18 ; 4 Cooley’s Bl. Com. * 222, n. (4); Clark’s Man. Cr. Law, § 182.

We discover no error in the record, and the judgment of the city court, with the sentence of death which it has pronounced upon the prisoner, must be affirmed.