61 Ala. 282 | Ala. | 1878
It is settled here, that no appeal lies for the refusal by the primary court, to order a change of venue in a criminal cause. — Kelly v. The State, 52 Ala. 361. It follows that this court will not inquire into the reasons for such a refusal when a cause is brought here after final judgment below. It would be useless to examine into considerations upon which a ruling was made which, if wrong, it is not within our province to correct.
To constitute the jury that shall try a defendant charged with a capital offense, the court must make an order for the summoning of “ not less than fifty nor more than one hundred persons, including those summoned on the regular juries for the week.” — Code of 1876, § 4874 (4173). A motion was made to quash the venire, because among the persons so summoned, were two from “the regular juries for the week,” who had a few days before served as jurors in the trial of
It is commonly supposed to be a right of the defendant which the court must respect, to have all the jurors empanelled for the week summoned among the persons from which the special jury in a capital case shall be constituted. It would doubtless have been alleged as matter for just complaint, if any of them were, without cause, omitted from the venire. How could the judge and sheriff know that the same jurors would render the same verdict against two different defendants separately tried for the same offense, or that the prisoner to be-tried might not be so assured of its being shown that he was innocent, as to desire the very persons to serve as jurors in his case, who had heard the evidence and rendered a verdict against the other defendant? It was certainly lawful, if not a right on which defendant could insist, that the persons serving on the regular juries for the week should be summoned to serve, if selected, upon the jury for his trial. — See Floyd v. The State, 55 Ala. 61. The Circuit Court did not err in overruling the motion.
It is the right of the State, not that of the defendant, to challenge for cause a person offered as a juror who has a fixed opinion against capital or penitentiary punishments. — Code, § 4883 (4182); Murphy v. The State, 37 Ala. 142. The judge did not err in putting Wilson Smith upon defendant as a competent juror, and refusing to exclude him unless challenged peremptorily.
The indictment charges robbery, in feloniously taking “thirty dollars in greenbaehs, national bank-notes, gold or silver coin of the United States, the property of William Hamilton, from his person and against his will, by violence to his person, or by putting him in such fear as unwillingly to part with the same,” &c. There being no copulative conjunction in that part which is designed to be the description of the things alleged to have been so taken, and it being against the rules for the interpretation of such instruments, to support an indictment by implications, we must construe the charge as in the alternative, — that defendant “ feloniously took thirty dollars of greenbacks, or national banknotes, or gold or silver coin of the United States,” &c. And
In the grave and formal accusation of a grand jury, by which a person is put on trial for his liberty or life, things which are the subject of an alleged larceny or robbery, should be called or set forth by the names or words which properly designate or describe them. “ Greenbacks ” is but a nickname, originally, or slang word, derived from the color of the engraving on the backs of the currency so denominated, and not either the legal designation, or a proper description of the things alleged to have been feloniously taken. The fact that the word has, from its conveniency, come into common use, does not make it by itself, without connection with something else indicating the notes called by that name, a proper denomination for them in an indictment.— Grant v. The State, 55 Ala. 201.
However, we can not hold that the indictment is, on that account, fatally defective. The crime it charges against the defendant is robbery. This is defined to be ‘‘ the felonious and forcible taking of the property of another from his person, or in his presence, against his will, by violence, or by putting him in fear.” — 2 Whar. Amer. Cr. Law, § 1696, (6th ed.); Archbold, 418. In this offense the kind and value of the property so taken, is not material, because force or fear is its main element. Hence, when a man was knocked down and his pockets rifled, but the robbers found nothing but a piece of paper having a memorandum on it, an indictment for robbing him of the paper was held to be maintainable. It was held sufficient if of some value, however little, to the person robbed. — Rex v. Bingley, 5 Car. & P. 602; State v. Burke, 73 N. C. 83.
In this cause, the indictment charges and the verdict ascertains that these “ greenbacks,” described to be “ thirty dollars of greenbacks,” &c., were the property of one Hamilton, and were feloniously taken by defendant, from said Hamilton’s person against his will by violence to his person, or by putting him in fear. This was robbery.
Let the judgment of the City Court be affirmed.
