Shelton v. State, 73 Ala. 5

73 Ala. 5 | Ala. | 1882

SOMERVILLE, J.

— The practice was settled by this court in Kimltroughh case, 62 Ala. 248, that the court below should not delay the empaneling of a jury in the trial of a capital case, because some of the persons, whose names were on the venire served on.the prisoner, were absent from the court room, being engaged in deliberating upon their verdict in another cause. The statute authorizing a special venire to be summoned (Code, § 4874), and directing a list of such persons to be served on the prisoner, including the regular jury" (Code,.§ 4872), does not contemplate or require the procrastination of criminal proceedings in actual progress for such a purpose, although the members of the absent jury constitute a part of such special venire. So in Johnson's case, 47 Ala. 10, it was held that the court is not hound to send for an absent juror, who, having-been duly summoned in a capital case, fails to answer when his name is called, although he was then in the city, near at hand.

Under these rulings, which wc recognize as indicating the proper practice, there was no error in the action of the court refusing to send for such of the jurors as were engaged in the trial of the McCoy case, whose names were drawn during tlieir detention from the court room.

It is insisted, however, by appellant’s counsel, as nine-of these jurors, whose names were drawn during their necessary absence, returned before the process of empaneling the jury in the present cause was completed, the prisoner was entitled to have their names replaced in the hat from which they were drawn, for the purpose of enabling him to select the remainder of the panel from them.

Without deciding this question, we are of opinion that the ■prisoner has waived any light to except to the action of the court touching this matter. The bill of exceptions shows that the court offered to take this course immediately upon the return of these nine jurors, and that the defendant, by his counsel, expressly interposed an objection to such action on the part of the court. We think this was a waiver of the right; if it existed. The principle announced in Leonard’s case, 66 Ala.. 461, is a sound one, that an exception can not be based on a ruling of the court, which was induced by the objection of the party so excepting. Exceptions touching the same matter, which are repugnant, are not allowable. It is not permissible for a party, in the progress of a cause, to oppose the adoption of a certain course, and immediately thereafter, to take exception to the refusal of the court to revoke its ruling, thus made at his own instance. If such proceedings were tolerated, judicial tribunals might easily he transformed 'into schools for the practice of artifice, rather than forums for the administration of justice. We may add that, under the peculiar facts of this case, we can not permit ourselves to doubt the integrity of purpose on the part ’ of the learned counsel in this procedure, in view of the grave doubts that might well exist, as to the proper course to be pursued in perfecting the organization of the jury.

We see no error in the order’of the court directing the sheriff to serve a copy of the indictment and of the special venire upon the prisoner. The direction is to “ furnish the defendant, in his own person, with a list of the names of the persons so summoned, including those summoned for the regular juries for said second week, and a copy of'the indictment in this case.” The language of the statute is, that the “ court must make an order, commanding the sheriff to summon not less than fifty, nor more than one hundred persons, including those summon.ed on the regular juries for the week, or term, when the term does not exceed one week.” — Code, 1876, § 4874. The order to summon the venire is in accordance with this section of the Code. Section 4872 of the Code gives the defendant a right to have service on him of “a copy of the indictment and a list of the jurors summoned for his trial, including the regular jury?’

We have repeatedly held, and the rule is now firmly settled, that the record need not show affirmatively that the prisoner was duly served, as required by this statute, with a copy of the indictment and venire. In the absence of any objection on that ground, such service will be presumed to have been properly and regularly made. — Spicer’s case, 69 Ala. 159; Paris v. The State, 36 Ala. 232; Rash v. The State, 61 Ala. 90.

It is insisted, however, that there is a distinction between “those summoned on the regular juries,” as these words appear in section 4874, and “ those summoned for the regular juries,” as this phrase appears in the order of the court directing a service of the venire on the prisoner. In our judgment these two phrases meau substantially the same thing. It is true that in Floyd's case, 55 Ala. 61, where the order for a venire was made after the arrival of the day when the regular juries are required to be in attendance, the cause being set for the week during which the order was made, the list served on the prisoner, it was held, was required to include only those regular jurors “ In attend,anee” and not those who, though summoned as regular jurors, were excused or discharged. when the jury was organized. We are free to say, that we do not approve the soundness of the reasoning adopted in that case, although we are not disposed to dissent from the conclusion reached. It might well have been held, that the phrase — “including the regular jury as used in section 4872 of the Code, meant such of the jury as were “in attendance” only, within the meaning of those words as they appear in section 4878, without adopting the construction which seems to have been placed on section 4874 of the Code.

The principle of Floyd's ease, however, can not be extended beyond the strict reason upon -which it is based. It must be limited in its application to’those cases, where the trial is set, and the order made, at a time when the regular juries are summoned to l>e in attendance. It is then quite practicable to include in the list or venire only those who are actually “ in attendance,” and would be futile to included any others, as the law is presumed never to require the doing of a useless thing.

Rut the reason of this rule of construction, upon which alone Floyd's case can be sustained, has no application to those cases where the order for the venire is made and the trial set at a time before the arrival of the particular day when the regular juries are required to be in attendance. The sheriff can not then possibly know which of the regular juries will be in attendance, and which of them will be absent. Tie can only know the persons who are actually summoned, and it is sufficient. if he includes these among the list of names constituting the venire. ’ This is, to our mind, the plain meaning of the statute, and this construction is sustained by the long practice of our circuit courts, extending far back in the history of our State, and, we may say, originating contemporaneously with the original enactment of the statute.

The declaration of the defendant, as to an alleged improper intimacy between the deceased wife and one Glover, was not admissible evidence in the cause, being shown not to have constituted any part of the res gestes of the homicide. — Billingslea's case, 68 Ala. 486.

We discover no error in the record,'and the judgment of the circuit court must be affirmed.