McNeil v. State

47 Ala. 498 | Ala. | 1872

B. E. SAEEOLD, J.

The defendant appeals from a Sentence for hving in adultery.

The first objection is, that the jury was not properly sworn. The recital of the record is, “thereupon came a jury of lawfully qualified men, to-Avit: T. A. Malone, and eleven others, Avho being impanneled and sworn well and truly to try the issue joined, and having heard the evidence,” &c. In McGuire v. The State, (37 Ala. 161,) and Pile v. The State, (5 Ala. 72,) the recital in the judgment-entry was the same as in this case, and was held to be sufficient. It is manifest that the oath administered was not attempted to be set out in full, and nothing is shown from AArhich AAre can infer that any portion of the oath required Avas omitted. In the case of Jo. Johnson v. The State, and of others, at this term, reversed on the ground of error in the administration of the oath to the jury, there Avas a completeness about the description of the oath administered that forbade any presumption at all.

'['.here was no refusal of the court to hear the prisoner by himself and his counsel, nor denial of his right to be so heard, but the court being called on by the jury to repeat its instruction concerning a certain point, during an interval in the session, did so, in the absence of the prisoner’s counsel, Avithout sending for or calling- them. It also, aíteiwards, in like manner received the verdict, and discharged the jury. The counsel could not have been expected to be present at these times, as there was a recess to an appointed time beyond. It does not clearly appear from the bill of exceptions whether the sentence was rendered during the intermission or not.

Collins v. The State, (33 Ala. 434,) was a case in which tlie court gave additional instruction to the jury during a recess in the absence of the prisoner’s counsel. Some stress was laid upon the fact, that it did not appear but the counsel had been called or sent for. It was said that to deny the right of the court to give instruction to the jury when the counsel was willfully absent, would lead perhaps to more evil than good. It is manifest that the prisoner himself might be greatly prejudiced. But we think an opportunity should have been given to them, and it is so intimated in the above case. It was once the custom of the common law not to permit the defendant in a criminal case to be aided or represented by counsel at all. The right to have such assistance is now guaranteed by both the Federal and State constitutions. It is the duty of the counsel to be constantly attendant upon the court during the trial of causes in which they are engaged. During the recesses of a term neither the parties, nor others concerned, are expected to be present. If at such times the court should deem it necessary to proceed with the business in any respect, the usual notice given to a particular individal when his presence is needed, should be given to the counsel of a prisoner. In this State this notice is given by calling them at the court-house door or other convenient place.

The judgment is reversed) and the cause remanded.