Steele v. State

111 Ala. 32 | Ala. | 1895

McCLELLAN, J.

The only question in this case is whether the trial court erred in overruling defendant’s motion to quash the venire of petit jurors before whom the trial was had; and this depends confessedly upon the further inquiry whether the regular veniries drawn by the jury commissioners for the county for that term of the court were properly quashed by the court, the jury put on the defendant having been organized under section 4316 of the Code after quashing said veniries, on the theory that no jury had been legally drawn by said commissioners. This theory was based on the fact that when the jury commissioners were about to draw from the jury box grand and petit juries for the ensuing terms of the court they discovered that there were not enough names remaining in the box to make up said juries, and they thereupon destroyed the slips of paper on which the names which were already in the box were written and proceeded to fill another box. And from this box thus filled before the first box was exhausted, juries for the term were drawn. There can be no doubt that this action of the commissioners was not in compliance with the statute : section 12 of the act of 1886-87, it is clearly contemplated, provided and required that the jury box must be exhausted before the commissioners have any power or authority (o fill another box. In this instance the commissioners did not begin and proceed with the drawing until the names then in the box were exhausted ; but instead of putting the seventy-five or one hundred names which were in .the box on the veniries, and then, if these names were not sufficient, which seems improbable, filling another box, and from it completing the drawing, they destroyed the slips of paper on which these names were written and not one of the names went on the veniries as the law required. Under the law as it was in the Code, it may be that such a procedure would not invalidate the drawing because of the influence of section 4314, declaring the Code provisions as to the selection, drawing and summoning of juries merely directory. But the act in question, and which obtained in Greene county when this drawing was had, contains no such provision, but to the contrary, does provide that any commissioner who shall willfully or negligently engage in the drawing of any jury or juror in any other manner or order than that by the act required shall be guilty of a crime (§ 14) ; and it has been expressly held that the provisions of this act are not directory merely, but mandatory.— Wells v. State, 94 Ala. 1; Johnson v. State, 102 Ala. 1, 13. The circuit court, we therefore conclude, properly quashed the veniries thus drawn by the commissioners, and proceeded to organize special juries under section 4316 of the Code ; and defendant’s motion to quash-a special jury thus organized and put upon him was properly overruled.

Special legislation will be necessary to legalize the jury box' now in the custody of the officers • of Greene county, or to authorize the preparation and filling of another box.

Affirmed,