Mitchell v. State

Dec 15, 1877

Reporters:
Before:: Manning

MANNING, J.

1. The record in this cause recites that the jury, “ being duly sworn according to law, the issue well and truly to try, and a true deliverance to make, say upon their-oath, that they find,” &c. No objection was taken to the form of the oath when it was administered; and it does not misdescribe the parties between whom the jury were to decide. The swearing of the jury was, of course, done orally *419in the presence of the judge, the prisoner, the prisoner’s counsel, and the audience which, is generally assembled on such occasions. All are witnesses to the sblemnity; and it almost never happens that it is incorrectly performed, by misreciting the terms of the oath. Ordinarily, only after the verdict has been rendered, and when it is about to be entered on the minutes of the court, is any record made therein of the swearing of the jury; and then the entry made of this is intended to be a record, not of the form of the oath, but of the fact that the jury had been sworn and acted under oath. A well trained clerk, who understands his business, and is duly careful to have the records of his court contain a correct and simple account of its proceedings, would not write more on this subject than that the jury were sworn according to law. And, though the minute entry of this fact is often unnecessarily verbose, it is to be understood only as a record inartificially made, of that fact, unless it appears that it is intended also to set forth the oath itself in the the form in which it was taken by the jury. The sum of our decisions on the question of error in swearing the jury is, that the correct oath will be presumed to have been administered, when it appears that the jury was sworn, unless it also appears that one substantially different, or defective, was administered.— Walker v. The State, 49 Ala. 370; McCaller v. The State, Ib. 40; Crist v. The State, 21 Ala. 149-50; Blair v. The State, 52 Ala. 344; De Bardelaben v. The State, 50 Ala. 180; Moore v. The State, 52 Ala. 424; Bush v. The State, Ib. 13; McNeill v. The State, 47 Ala. 503; Edwards v. The State, 49 Aa. 334; Atkins v. The State, in MS.; McGuire v. The State, 37 Ala. 161. The cases of Johnson v. The State, 47 Ala. 31 and 62; Smith v. The State, Ib. 545; Same v. Same, 53 Ala. 486, and Murphy v. The State, 54 Ala. 178, being contrary to the decisions in the cases, supra, are overruled. There is no evidence in this record that the oath was not administered in proper form, and the assignment of error thereupon is not sustained.

2. The physician whose opinion was excepted to at the trial, was competent, from his long experience in the practice of his profession, and with the knowledge and information he was shown to have of the symptoms of the malady of the deceased, to testify as an expert. It was for the jury to decide whether his testimony should influence their verdict for or against the* defendant.

3. When, on cross-examination, the witness said that, if he had not been informed that there was arsenic in the house, he “would not have concluded that the sickness and death was caused from poison by arsenic, but learning this fact he *420came to the conclusion be did, from observation of tbe symptoms of tbe case, and from having beard that Sam Hooks bad arsenic in tbe bousecertainly this acknowledgment greatly impaired tbe force of bis testimony as evidence against tbe prisoner, but it was not inadmissible. There was no error in tbe refusal to rule it out.

4. In Paris v. The State (36 Ala. 235), in reference to “the silence of tbe record in the matter of the service of a copy of the indictment, and a list of the jurors, two entire days [now one dayJ before the trial, and in the matter of a formal arraignment pleaded,” this court said, “ although these are among the clear legal rights of one who stands charged with a capital felony, still — -they are not of that high grade — do not so enter into the essence of the trial by jury, that the record must, in all cases, show affirmatively that they have been observed. When, as in this case, the record affirms that the prisoner being brought to the bar pleads not guilty, and thereupon a jury is empanneled and the trial progresses in usual form to a verdict of guilty, and sentence of the law pronounced thereon, . . . [and] no objection or exception appears to have been made in the court below, questioning the regularity of any preliminary step in the prosecution, we but conform to our former decisions, in presuming that all has been regularly done which does not appear by the record to have been otherwise.” Numerous cases are cited to support this ruling ; and we have heretofore readopted it and overruled Robertson v. The State (43 Ala. 325) so far as it lays down a different rule in respect to service of a list of the jurors upon the prisoner. According to the present record, an order was made, after arraignment and plea, setting a day for the trial and ordering the sheriff to summon fifty jurors besides those on the regular panels for tbe week, and that a list of the jurors and copy of the indictment be served on the prisoner, &c.; and it is further recited that the sheriff returned into open court a venire of fifty persons in addition to the regular panels, “ from which was duly selected, empanneled, and sworn, a jury to try this case.” No irregularity in this matter was complained of in the court below, and the presumption is that there was not any.

The judgment of tbe Circuit Court must be affirmed. And inasmuch as the execution of the sentence of said court was suspended until the determination of this court be had upon the appeal to it, and the day appointed for such execution has elapsed, now, in obedience to the statute in such case made and provided, this court orders that the sentence of the Circuit Court be executed, according to law, on Friday, the twenty-third day of August next, in the present year.