Kimbrell v. State

• Decision Date: 15 May 1901
• Parties: KIMBRELL v. STATE.
• Court: Alabama Supreme Court

30 So. 454

130 Ala. 40

KIMBRELL v. STATE.

Supreme Court of Alabama

May 15, 1901

Appeal from circuit court, Fayette county; S. H. Sprott, Judge.

Tom Kimbrell was convicted of murder, and appeals. Affirmed.

Before entering upon the trial of the cause, the defendant moved to quash the venire served upon him for the trial of the cause upon the grounds that there was a mistake made in designating certain of the jurors drawn as residing in a particular beat in the county, when they lived in another than that named upon the slip, and also upon the ground that there was a mistake made in the names of some of the jurors. This motion to quash was overruled, and the defendant duly excepted. During the drawing of the jury for the trial of the defendant, when the names of James F. Smith, J. L. Sanford J. D. Watson, T. J. Tappison, and L. W. Deavors were separately drawn, the defendant moved to discard said names respectively, upon the ground that there was a mistake made in the names of said jurors as placed upon the list served upon the defendant. The specific grounds of each of these motions are sufficiently stated in the opinion. The court overruled the motion, and the defendant duly excepted. During the drawing of the jury, there was placed in the box the names of several persons who were drawn as jurors, but who were not summoned, and did not appear. When the names of these jurors were drawn, the defendant made a motion to quash the panel, upon the ground that said jurors had not been summoned. This motion was overruled, and the defendant duly excepted. The defendant pleaded not guilty, and not guilty by reason of insanity.

Coleman & Bankhead, for appellant.

Chas G. Brown, Atty. Gen., for the State.

DOWDELL J.

There was no error in the action of the court in overruling the defendant's motion to quash the venire because of an alleged mistake in the names of jurors, either in the venire or the list delivered to the defendant. The statute expressly provides that this "is not sufficient cause to quash the venire, or to delay or continue the trial, unless the court, in its discretion, is of opinion that the ends of justice so require." Code 1896, § 5007.

Nor was there any error in refusing to discard, on defendant's motion, the names of the jurors Smith, Sanford, Watson Tappison, and Deavors. As to the first three mentioned, the alleged mistake in the names was that in the list delivered to the defendant the second initial was different from that in the venire, the first initial in both the venire and the list served on defendant being the same. As the law recognizes but one given or Christian name, that there was a variance in the middle name or initial did not constitute a mistake in names, within the meaning of the statute. Pace v. State, 69 Ala. 231. As to the last two names above mentioned, the alleged mistake consisted in the spelling; the names being written "Tappason" and "Davors," when the correct spelling of the names was "Tappison"...