112 Ala. 55 | Ala. | 1895
Whether defendants jointly indicted are entitled as matter of right to demand á joint trial, is not now an open question in this- court. The
The offense charged in the indictment, on conviction, could be punished capitally. The statute required the court to set a day for the trial of the case, and the formation of a special venire from which the jury for the trial were, to be selected. The primary, indispensable constituent of the venire, was the panel of petit jurors organized for the week, the day set for trial being a subsequent day of the same week. The remaining constituent was a list of jurors to be drawn by the court from the jury box of the county. The number drawn could not exceed fifty, nor could it be less than twenty-five — within this -limitation, the number rested in the discretion of the court. The court fixed the number at fifty, and proceeded in accordance with the statute to draw from-the jury box. After the drawing, and before the service of the venire on the defendants, it was discovered that there had been drawn from the jury box, the names of six persons who were serving as grand jurors for the term ; of seven persons who were of the organized panel of petit jurors for the week ; and of one person, who had been drawn and summoned as a petit juror for the week, had appeared, and been excused from service by the court. These facts being made to apjoear, on motion of the solicitor, the court quashed the venire, and proceeded to draw again from the jury box, until the box was exhausted, a list to be added to the panel of petit jurors.
In this, there was no error; the proceedings were in fieri, under the control of the court, and with its order there had not been compliance, literal or substantial. When, in the exercise of its discretion, the court determined and declared of record, that fifty person's should be drawn and added to the panel of petit jurors organized for the week, that number became an essential, indispensable constituent of the venire, from which the jury for the trial were to be selected. As essential
When the commissioners had drawn from the jury box the grand and petit jurors to serve for the terms of the circuit court to be held during the year 1896, having prepared the lists to be delivered to the clerk of the court, and the corresponding lists to be deposited in the box, the statute required them to destroy every piece of paper on which was written the name of a person so drawn.
The statute, it is true, so far as it prescribes the powers and duties of the commissioners, and the time and manner of exercising and performing them, has been construed as mandatory; and a strict compliance with its requirements, has been deemed essential to support
The non-performance by the commissioners of the duty of destroying these slips or pieces of paper, if it be assumed that they were the slips or pieces they had drawn from the jury box, -worked no injury, and could not work injury to the defendants. Finding them in the jury box, in the process of forming the special venire, and it being made to appear that the persons they represented, had been drawn by the commissioners as jurors, grand or petit, for the term, the judge properly discarded them. It is from the names, properly, rightfully, legally in the jury box, the statute contemplates, so long as the box is not exhausted, the jurors forming part of the special venire shall be drawn. Until the box had been exhausted and filled again by the commissioners, there is no process known to the statute, by which these names could get again into the box. For all legal purposes, these slips were no more than blank or waste paper, and it is not material whether the judge merely cast them aside or destroyed them. No right of the defendants was affected ; there was no event in which they could claim that the persons whose names these slips represented, should form part of the special venire.
As we gather from the bill of exceptions, when the first special venire was drawn, the jury box contained in the aggregate but forty-nine names. In the interval between the drawing and the quashing of that venire, a venire of thirty-five persons for the trial of another capital case was drawn. Whether the venire so drawn contained the names of any of the grand or petit jurors drawn for the term by the commissioners is not shown. But it is shown that after the drawing of the venire which was quashed, and after the drawing of the venire for the trial of the other case, in each instance, the judge
We are of opinion this action of the court was erroneous ; and that the motion of defendants to quash the special'venire on this ground should have been sustained. Talcing the statute in its general scope, it seems manifest, that where the name of a juror is once drawn from the jury box, restoration of it is not contemplated. It may be that the commissioners, or that the judge of the circuit or the city court, in the course of drawing jurors from the box, may by inadvertence or mistake draw a name, and that there may be restoration of it. But when the jurors are legally and intentionally drawn, whether by the commissioners, or the judge, it is not contemplated there shall be restoration of their names to the jury box to be drawn indefinitely. The power to restore is not conferred by the statute, either on the judge, or on the commissioners; and there is no room or reason for its implication; without it, all the purposes of. the statute may be satisfied. In express terms, the statute provides that in the event the jury box becomes exhausted in the drawing a special jury for the trial of a capital case, “the court shall direct the sheriff to summon from the qualified citizens of the county, the specified number of jurors necessary to complete said venire, and to proceed with said trial.” The number to be summoned is specified in the preceding section ten. This is the power the court ought to have exercised.
It is not necessary to prolong this opinion by a discussion of the other rulings of the court to which exceptions were reserved. These rulings are free from error, and depend upon well known and settled principles.
For the error pointed out, the judgment is reversed and the cause remanded; the defendant will remain in custody until discharged by due course of law.'
Reversed and remanded