Rash v. State, 61 Ala. 89

Rash v. State

61 Ala. 89 | Ala. | 1878

STONE, J.

1. The rulings of the Circuit Court, in reference to the juror Lockwell, were in precise accordance with the statute, Code of 1876, § 4876, as construed in Floyd v. The State, 55 Ala. 61, and are free from error. Neither did the court err in refusing, after the jurors had been accepted and sworn, to allow further inquiry, or challenge of jurors. Questions as to the qualification of jurors, not previously raised, must be treated as waived, when the jurors for the trial of a felouy are accepted and sworn. — Smith v. The State, 55 Ala. 1. It should be observed, however, that in this case, no offer appears to have been made in the court below, to show that any of the jurors were related, by consanguinity or affinity, to the deceased or the accused. — See Drake v. The State, 51 Ala. 30.

2. The judgment-entry fails to show that a list of the jurors, summoned for deieudant’s trial, was served on him one entire day before the trial. If necessary, we would presume this was done, in the absence of objection in the court below that it was not done, or other statement of the record, rebutting the presumption. — Paris v. The State, 36 Ala. 232; Lewis v. The State, 51 Ala. 1.

Rut the bill of exceptions in this case, made part of the record, shows that a list of the jurors •was so served. The cases of Robertson v. The State, 43 Ala. 80; Flanagan v. The State, 46 Ala. 703; Bugg v. The State, 47 Ala. 50, and Mor*95gan v. The State, 48 Ala. 65, have been heretofore overruled. Lewis v. The State, supra.

3. There is nothing in the objection that the twelfth juror was put on defendant without his consent. He had exhausted his peremptory challenges, and could not challenge further, except for cause. The silence of the record must be regarded as evidence that no legal reason existed why the juror should not be received as a juroi for the trial of the case.

4. The Circuit Court pursued the law in its rulings on the testimony of experts. — Tullis v. Kidd, 12 Ala. 648; Bush v. Jackson, 24 Ala. 273; Bennett v. Fail, 26 Ala. 605; Johnson v. The State, 35 Ala. 370.

5. ¥e are asked to reverse this case, because it is said the whole evidence is before us, and that it did not justify the conviction. We need scarcely say, what has been many times said, that under our system, this court has no power to grant a new trial. Such applications are addressed to the enlightened discretion of the primary court trying the cause. If that court refuse a new trial, and if the record show no reversible error in the court’s rulings, there is no redress, save in the pardoning or commuting power of the executive, if the case be one to call for it. ¥e express no opinion on the testimony found in this record. But the record does not show or affirm that it contains all the evidence.

The judgment of the Circuit Court is affirmed, and it is ordered and adjudged that on Friday, the 28th day of March, 1879, the sentence of the law pronounced in this cause be executed, by hanging the said Charles Bash by the neck until he is dead; and the sheriff of Colbert county is charged with the execution of this sentence.