Murray & Bell v. State

| Ala. | Jun 15, 1872

PETERS, C. J.

‘The first questions presented in this prosecution, as matter of error, arise on the demurrer to the indictment. The charge is burglary. The first count was abandoned. This left only three others still remaining — the 2d, 3d and 4th. The second count is in these words:

“The grand jury of said county further charge, that before the finding of this indictment, George Murray and Richard Bell broke into and entered a building belonging to the estate of John Whiting, deceased, in which goods, merchandise, silver-ware, table-service, furniture, trunks and clothing, were, at the time, kept for deposit, with intent to steal, against the peace and dignity of the State of Alabama. ”

The objection to this count seems to be, that it does not describe the “building” alleged to have been entered with sufficient legal accuracy. We think this objection is not well taken. The house was not a dwelling-house. It was merely a “ building in which goods, merchandise, &c., were kept for deposit.” This is the language used .in the statute. — (Rev. Code, § 3695; Ib. p. 811; Forms of Indictments.) This is a sufficient description of the place where the goods were kept. — (Eev. Code, §§ 4112, 4119.) The allegation of the ownership óf the building is not an element of the crime, and reference to it is only to increase the accuracy of the identity of the building. That it was a part of the estate of John Whiting, deceased, was a sufficient description of the ownership. Precise accuracy in this particular is not required. — Anderson v. The State, ante, p. 665; see, also, Rev. Code, § 4127.

This objection is also made to the third and fourth counts, but for like reasons as the above it must fail. In addition to the facts stated in the statutory form of an indictment for burglary, the third and fourth counts in this case allege that the intent to steal was consummated by an actual theft. This does not vitiate the indictment. Wolf vs. The State, June term, 1873. The demurrers, then, were properly overruled.

I next proceed to dispose of the question raised upon the defendants’ right to a peremptory challenge of a juror, which was refused them in the court below. Undoubtedly this is a right that may be waived by the prosecution or by the defendant. — Murphy vs. The State, 37 Ala. 142" court="Ala." date_filed="1861-01-15" href="https://app.midpage.ai/document/murphy-v-state-6506853?utm_source=webapp" opinion_id="6506853">37 Ala. 142; also, Lyman vs. The State, 45 Ala. 72" court="Ala." date_filed="1871-01-15" href="https://app.midpage.ai/document/lyman-v-state-6507902?utm_source=webapp" opinion_id="6507902">45 Ala. 72. In the former case last above cited, the court say: “ The prisoner has no right to complain that the State forbears to exercise the right to challenge,” as it is a matter of election, and may or may not be indulged. And in the latter case it is said that the right is one regulated by law. These determinations show that until the right to challenge is waived it should be enforced. We are mny called on to consider what amounts to a waiver of this right, which should bind the party making it? This question has not heretofore been precisely settled by any direct adjudication of this court. It is reasonable to conclude, that in a waiver, as in a contract, the intent of the party making it, is the principal thing. When this intent is based upon a presumption, this presumption is very much weakened, if it appears that the presumed waiver is injurious or likely to become injurious to the party making it, particularly when it involves the liberty of the persons making the waiver in unexpected peril. The bill of exceptions shows enough to make it evident, that the defendants did not intend to waive their right of challenge as to Campbell as a juror. Their peremptory challenges were not exhausted. They were evidently taken by surprise in finding him retained on the panel of their triors. They had not in fact elected him for this important purpose. They had not given any intelligent and intentional acceptance of his election as a juror in the-case. Blackstone lays down the rule at common law to be this, as to the mode of challenges: “Where the trial is called on, the jurors are to be sworn as they appear to the number of twelve, unless they are challenged by the party. ” — 4 Bla. Com., marg. p. 352, 353. This evidently means that the right of challenge is open until the juror is sworn. Under this rule, if the objection comes before the juror is sworn, it comes in time. If it comes in time, it must be allowed. — Rev. Code, § 4178. Here this was the ease. I do not think there was any intelligent and intentional waiver before this time, in this case.

The admitted conflict of decision on.this question in the different States of the Union, and the great and jealous tenderness which the law indulges towards the life and liberty of the citizen, seem to justify this court in giving this rule its most liberal interpretation. We, therefore, adopt the unanimous declaration of the Supreme Court of Ohio, and say, that the right of the peremptory challenge of a juror in a prosecution for a felony involving the liberty of the accused, in favor of the defendant, should be held open for the latest possible period — to-wit, “ up to the actual swearing of the juror.” — Hooker v. The State, 4 Ohio, 348, 350; also, Bac. Abr. Jury; People v. Bodine, 1 Denio, 281" court="None" date_filed="1845-07-15" href="https://app.midpage.ai/document/people-v-bodine-6142249?utm_source=webapp" opinion_id="6142249">1 Denio, 281; Commonwealth v. Hendricks, 5 Leigh, 709, and eases cited in appellant’s brief.

There is nothing in the refusal of the charges asked by the defendants on the trial below which would justify a reversal. These charges asked a construction of the evidence, which was not justified by any well settled legal principles. The description of the buiMing which was entered with burglarious intent was sufficient, as has already been shown in discussing the demurrer, which involved this question. And the possession of the goods taken from the building broken by the burglars was competent evidence of guilt, when not so explained as to show that it was an innocent possession. — 1 Greenleaf Ev. § 34. The evidence tended to show that the house was broken and entered late in November or'December, 1870, and that the goods were not shown, by the prosecution, to be in the defendant’s possession until in January, 1871. It is insisted that such a possession is not • sufficiently recent as to justify the jury in resting a conviction upon it. I know no rule of evidence that circumscribes such facts to this extent. Unexplained possession of the stolen articles is evidence of guilt. And it is for the jury to say whether it is sufficient or not. They are the judges of its force. If the defendants committed the theft of the goods, and the goods were in the house broken, as the.proof shows, this was evidence of the burglary as well, as the larceny. And the jury could give it what force they thought fit. The court could not exclude it by a charge. This latter purpose seems to have been the object of the defendants in asking the charge on this point, which was refused.

For the ertor in refusing the challenge as above shown, the judgment of the court below is reversed and the cause is remanded for a new trial in conformity with law.

SAFFOLD, J., not sitting.

Note by Reporter. — The opinion in this case was delivered at the June Term, 1873. It is here inserted by direction of tbe Chief Justice, in advance of the other opinions delivered at the same term, as it settles an important question of practice in the criminal law.