Perry v. State

59 So. 150 | Ala. | 1912

DOWDELL, C. J.

In ordering a special venire for the trial of this case, the order of the court was- for 60 jurors, “to consist of the 56 regular jurors summoned for the Aveek in Avkich the trial of this case is set, and 4 jurors to be here and now drawn,” etc. It avíII be observed that the order of the court is, “to consist of the 56 regular jurors summoned,” instead of drawn and smnmoned, in the language of the statute. The omission in the order of the word “drawn” was made the ground of a motion to quash the venire, which Avas overruled by the court.

The order was irregular in the omission of the word “drawn,” and it is always best to follow the language of the statute in such cases; but in this instance we are unable to see that any possible injury resulted to the defendant. The record shows that when the order was made the court had before it the sheriff’s return upon a venire of 60 regular jurors previously drawn by the court under its own order, showing that out of the 60 names 56 had been duly summoned, and consequently the 56 summoned must also have been drawn; so, notwithstanding the omission of the word “drawn” from the order, the defendant in fact had all that he could have had, had there been no omission in the order.

But it is insisted by the appellant that the omission of the word “drawn” from the order was prejudicial error in this case, because one of the regular jurors embraced in the 56 summoned had not in fact been drawn, to wit, one Charles M. Thornton. The contention is that “Charlie Thornton” was drawn, and “Charles M. Thornton” was summoned; that therefore only 55 of the 56 had been both drawn and summoned, thus reducing the number of jurors to 59 in all, and thereby depriving the defendant of one less than the number (60) fixed in the order for the special venire.

It appears from the record that the court had drawn and embraced in its order to the sheriff to summons the venire of 60 regular jurors for that week the name of one “Charlie Thorton, beat 4;” that the sheriff’s return thereon showed that 56 of the jurors, including Charlie Thorton, had been duly summoned; the list of the jurors served upon the defendant contained the name of Charlie Thorton, beat 4, as being one of the regular jurors summoned for the week. The evidence of the sheriff and two other witnesses on hearing the motion to quash, showed that there ivas no such person as “Charlie Thorton” living in heat 4, and that the sheriff had in fact served the summons upon one “Charles M. Thornton,” of heat 4, who was commonly called “Charlie Thornton,” and who was the only person of that name in beat 4. So Charlie Thorton was drawn, and Charlie Thornton was summoned and impaneled — a mere mistake in the name, caused by a clerical omission of the letter “n” from the name as it stood in the jury box and in the court’s order and in the sheriff’s return thereon, which could hardly have misled the defendant as to the person intended.

Section 32 of the Jury Act (Acts Sp. Sess. 1909, pp. 305 et seq.), among other things, provides, substantially, that if the sheriff fail to summon any of the jurors drawn, or any juror summoned fail or refuse to attend trial, or there is any mistake in the name of any juror drawn and summoned, none nor all of these grounds shall be sufficient to quash the venire or continue the cause.

It was held, in the case of John Sims v. State, 176 Ala. 14, 58 South. 379,’ that: “The fact that the list of regular jurors contained the name of B. L. Edwards, and there was no such man, but B. L. Edmonds was summoned, did not affect the validity of the order of the court. The sheriff’s return showed that 43 regular jurors had been summoned, and there was nothing in said return to indicate that there was no such person as Edwards; but the said return recites that all of the regular jurors (45) had been summoned except two, giving their names, making 43 regular jurors summoned. The court fixed the total number at 68 and then drew 25 special jurors, which, with the 43 regular jurors summoned, made 68, as fixed by the order of the court, and which said order was in strict compliance with the statute. Therefore the fact that there was a mistake in the name of any juror appearing upon the list, or the fact that it contained the name of a person not in existence, did.not in any way affect the validity of the order, and could not work a cause for quashing the venire or a reversal of the case.”

In the case at bar, the order of the court provided for a venire of 60; the full 56 regulars had been summoned, and the 4 specials were forthwith drawn, making the number required. The mistake in the name of one of the jurors did not reduce the number drawn or summoned, the defendant Avas not prejudiced thereby, and the motion to quash Avas properly overruled, as Avell as the objection to going to trial on the venire as constituted.

The defendant excepted to the' order of the court sustaining the solicitor’s motion to quash the venire first draAvn. The order of the court for the first venire Avas clearly erroneous, having evidently been framed under the old jury laAV, and providing a venire in all of over 100 names; and the court very properly quashed this illegal venire, when its attention Avas called to it by the solicitor’s motion, as it had the right to do ex mero motu upon discovery of such illegality. It appears that for this reason two other venires of 50 special jurors— 100 names in all — in Iavo other cases, had been quashed a day or two before the venire on Avhich this defendant Avas put on trial was ordered and the four special jurors drawn; and one of .the grounds for the motion to quash the present venire Avas based upon the fact that these special jurors were ¿brawn before the 100 names of the quashed venires had been returned to the jury box. The contention is that this Avas in violation of the statute, section 19 of Avhich requires that all jurors not impaneled, and not disqualified or exempt, shall be forthwith returned by the judge to the box in open court. If there was any irregularity in failing to return these 100 names to the box before drawing the special jurors, it is not sufficient to quash the venire under section 29 of the act; nor could it be presumed that the defendant was in any way prejudiced thereby. See Savage v. State, 174 Ala. 94, 57 South. 469.

In the ruling of the court on the objection of the defendant to the introduction in evidence by the state of the letter -written by the defendant, there Avas no error.

That part of the oral charge of the court excepted to by the defendant, defining a reasonable doubt, while subject to the criticism of being argumentative in the statement in the last clause, “It would cause a reasonable and prudent man to pause and hesitate in the graver transactions of life,” was nevertheless free from reversible error.

The written charge requested by the defendant predicated an acquittal upon a doubt, instead of a reasonable doubt, and was therefore properly refused.

We find no reversible error in the record, and the judgment must be affirmed.

Affirmed.

All the Justices concur.