Phillips v. State, 68 Ala. 469

Phillips v. State

68 Ala. 469 | Ala. | 1881

BRICKELL, 0. J.

1. The objections to the organization of the grand jury, presented by the'pleas in abatement, were not well taken. The question is so fully discussed in Billingslea v. State, at the present term, that further consideration of it is unnecessary.

2. The indictment is in the form prescribed by the Code, and avers all the constituent elements of murder, though omitting averments which by the common law were indispensable. Such indictments were pronounced sufficient in Noles v. State, 24 Ala. 672, and the decision has been since uniformly followed.—Billingslea v. State, at the present term.

3. For the trial of a person charged with a capital offense, the statute requires the court to make an order, 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 or term. A list of the jurors summoned, including the regular jury, must be served on the accused, at least one entire day before the trial. The jury is drawn from this list, by writing the names of each person summoned on a separate slip of paper, placing the slips in a box, or some proper substitute therefor, in the presence of the court, and by some officer designated for that purpose.—Code of 1876, §§ 4872, 4874, 4878. The record shows that; during the *473terra, a day was fixed for the trial of the accused, and the sheriff was ordered to summon fifty persons as jurors, including the regular panel, and to serve on the accused a list, of the persons summoned. It is not shown affirmatively that there was compliance with the order; but the presumption of compliance arises, from the silence of the record, and the trial without objection.

• 4. From the list of persons so summoned, Both, Skinner and Montgomery were separately drawn, and were each excused and discharged by the court, against the objection of the accused, upon their statements that they were firemen. Keeble, another of the list, was drawn, and was excused and discharged, against the objection of the accused, upon his statement that he was a member of the “Phcenix Fire Company,” accompanied with a paper purporting to be the charter of the company, containing a clause exempting its members from jury duty. The statute (Code of 1876, § 4734) exempts from jury duty members of incorporated fire companies ; and if it had been shown the persons discharged were entitled to the exemption, the court was without power to compel them to serve as jurors, and could discharge them at any time before they had been accepted and sworn. The exemption as to three of them w’as not, however, shown. The mere statement of these persons, that they were firemen, was not sufficient. They might have been firemen, without being members of an incorporated fire company. The statute also exempts the officers of incorporated banks. Every banker, or the employee of a banker, is not thereby entitled to relief from the public duty of jury service. Whoever claims a statutory exemption from a public duty, imposed upon the class of citizens to which he belongs, must show that he comes within the exemption. The mere statement of these persons, that they were firemen, is as insufficient to bring them within the statutory exemption, as would be the statement of a person, that he was a banker, or banker’s clerk, to bring him within the exemption extended to officers of incorporated banks. The further fact should have been shown, that they were members of an incorporated fire company. The members of such companies are .subjected to public duties, and the subjection forms the consideration of the exemption from jury duty. As to Keeble, we think the evidence of his membership of an incorporated fire company was sufficient.

5. The question arises, can the court discharge persons, having the requisite qualifications, summoned and drawn, from service on the jury, without the consent, and against the express objection of the prisoner. The statutory pro*474’visions to which we have referred, entitling a person indicted for a felony which may be punished capitally, to a list of the persons summoned as jurors, has existed here from the time of the territorial government. It has never been construed as directory, but as conferring on the accused a substantial, valuable right, of which he cannot be deprived by the act of the court, or by the laches of its ministerial officers.—State v. McLendon, 1 Stew. 195; Parsons v. State, 22 Ala. 50; Bain v. State, at present term. The purpose of the statute cannot be misunderstood. The accused has not a right to be tried by such a jury as may be selected from the body of the county, but by a jury selected from the list served upon him, so far as was practicable. It is intended that, as to the persons summoned, he shall have full opportunity of ascertaining whether causes for challenge exist, and also to inform himself as to whom, if any of them, he should exercise the right of peremptory challenge.—Parsons v. State, supra. Of what avail is the right, if, without sufficient cause, the court can discharge from service persons who have been summoned and drawn? Where is the limit of the power of the court, if it can be exercised as to one such pei’-son? It could be exercised until the list was exhausted, and thus the prisoner driven to the selection of a jury from talesmen summoned from the body of the county, as to whom he could not intelligently exercise the right of challenge, either for cause, or peremptory. It is an error fatal to a judgment of conviction, when it appears the court has by its action denied, impaired, or diminished this right of the accused.—Parsons v. State, supra; Boles v. State, 13 Sm. & Marsh. 398.

6. The several objections to the introduction of evidence, taken by the prisoner, were properly overruled. The State was bound to prove that the wound inflicted by the prisoner caused death. The state of the health of the deceased, immediately before the infliction of the wound, was a fact of some significance in this connection. The previous relations of the prisoner and deceased, it was also proper to prove. From these, the motive of the accused may have been inferred.

7. The form of indictment for murder or manslaughter, prescribed by the Code, contains an averment of the means, and, if a weapon or other instrument was employed, of the kind or character of such weapon or instrument. The allegation of different means, in the alternative, in the same count, is authorized.—Code of 1876, § 4796. By the common law, an allegation of the means of causing death, and of the weapon or instrument, if one was used, was also necessary. *475In separate counts, different means, or different weapons or instruments, could be alleged. The change of the common law effected by the statute, is the averment in the alternative, in the same count, of different means, obviating the objection of duplicity. The present indictment contains a single count, averring that death was caused by cutting with a knife. The evidence tended to show, that death resulted from blows inflicted by striking with a pistol. Whether there was a material variance between the allegation and proof, is involved in one of the exceptions to, the instructions given the jury, and two of the instructions requested by the prisoner, and refused by the court.

The rule of the common law, applicable to the forms of indictment prescribed by the Code, is, that if the weapon or instrument charged, and that proved, are of the same nature and character, there is no variance; but the variance is fatal, if they are of an opposite nature and character.—2 Whart. Cr. Law, § 1059. Or, as the rule is stated by Greenleaf: “It is sufficient, if the proof agrees with the allegation in its substance and generic character, without precise conformity in every particular.—S Greenl. Ev. § 140. The question, really, seems to be, whether it appears from the evidence the deceased was hilled in u manner essentially different from that charged in the indictment. In Guedel v. State, 43 Ill. 226, after very careful consideration, it was held, that killing by shooting, and killing by beating upon the head with a gun, are modes of causing death so essentially unlike, that proof of the one would be inadmissible under an indictment charging the other. A knife and a pistol are not weapons of the same character, and, as"stated by Wharton, evidence of a knife will not support the averment of a pistol; nor can evidence of a pistol support the averment of a knife. Under the averment of a knife, it may be permissible to prove that death was caused by the use of a dirk, a dagger, or other like instrument. We cannot hold that an allegation of death by cutting with a knife is supported by evidence of death caused by blows stricken with a pistol. The nature of the wounds inflicted would be essentially different. The Circuit Court was in error in the instruction given, and the instructions refused on this point.

We do not deem it necessary to pass on the other exceptions. They involve no question which has not been of frequent consideration in this court.

For the errors pointed out, the judgment is reversed, and the cause remanded. The prisoner will remain in custody, until discharged by due course of law.