134 Ala. 126 | Ala. | 1901
Lead Opinion
The jury in this case was organized and impaneled under a special law approved March 2d, 1901, entitled an act “To more effectually secure competent and well qualified jurors in the county of Montgomery.” — Acts, 1900-1301, p. 1994. Section 10 of this act, pages 2002-3, contains the following provisions, viz.: “Provided, that if at the time appointed for the trial of the capital case a jury should not he made of those who are summoned and appear, the presiding judge or associate judge, as the case may be, shall draw from the jury box such number of names as he may deem proper to complete said jury, and additional names may be so drawn as often as may be necessary, provided that should any juror so drawn reside more than two miles from the court house, the said juror may in the discretion of the presiding or associate judge- be relieved from attendance on said trial: Provided further, * * * * ; and upon the trial of any cause in either of- said courts a juror who has been drawn and summoned and is in attendance upon the court and whose' name is drawn for the trial of such cause shall be found to be upon a jury which is considering a verdict in another cause, it shall be no objection to proceeding with the trial of the cause in which his name is drawn as a juror, nor for the continuance of such cause, nor shall either party have the right to call such juror from the jury that he may have an opportunity to pass on such juror, but the name of such juror1 shall be laid aside and the drawing of the jury proceed as in the absence of a juror who is summoned and fails to appear.”
It Is manifest that the purpose of these provisions in the statute was to prevent delay in the due administra
There, was sufficient evidence from which the jury might havé reasonably inferred the defendant’s com-plicity in the crime committed by Jenkins.' The evidence without dispute shows that he went to the place where the robbery was committed in company with Jenkins, that he left the scene soon after Jenkins left, and was afterwards on the same day seen at the- house of one Jackson in company with said Jenkins, though defendant says, that he did -not go there with him, but did speak to Jenkins on this latter occasion, and that he got none of the spoils of the robbery. He was spoken of and to, at the time of the alleged robbery, as the friend of Jenkins, and was so recognized without any denial on his part of such relationship. The evidence does not show that the defendant in what he did, acted under compulsion from fear of death or serious bodily harm to himself; the most that can be said of it is, that he acted under the request or command of Jenkins. There is not the slightest evidence that he was threatened in any way by Jenkins, with death or great bodily harm, if he, defendant, failed or refused to obey his request or command. Noir was there any objection or remonstrance by thé defendant. That the act was done under the command of a, superior, furnishes no excuse or justification in a charge for robbery. See 10 Am. & Eng. Ency. Law (2d ed.), page 317, and notes, where the question is discussed and authorities cited. We are not to be understood as intimating in what is said above, that the defendant would have been excusable, if he had acted under duress, of life or great bodily harm. The facts ini the case do not present this question, but merely that o‘f one acting under the request or com
There was no error in the refusal of the Avritten charges requested by tire defendant. Finding no error in the: record, tin1 judgment will be affirmed.
Concurrence Opinion
I agree with Justice Tyson.
Dissenting Opinion
dissenting. — It is entirely clear to my mind that the evidence offered an inference for the consideration of the jury that defendant’s participation! in the robbery Avas under duress. The circumstances of the transaction, the situation of defendant at the time, the menacing attitude of Jenkins, armed as he was Avith the means of enforcing his commands, when taken in connection Avith defendant’s statement that he was made to do AAdiat he did, unless Ave abolish the well knoAvn rule which has prevailed in this court since its organization that inferences of facts deducible from the evidence must be submitted to the jury, make a case AAdiere the existence of the fact of duress vel non Avas not for the ascertainment of the court, but for the jury.
Charge 3 requested by defendant asserted a correct proposition of law (10 Am. & Eng. Ency. Law (2d ed.), pp. 346-7), and as the evidence afforded an inference in support, of the truth of the facts hypothesized in it, in my ooinion, it should have been given.