Smith v. State

• Decision Date: 31 October 1978
• Docket Number: 8 Div. 874
• Parties: Anthony J. SMITH v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1

364 So.2d 1

Anthony J. SMITH v. STATE.

8 Div. 874.

Court of Criminal Appeals of Alabama.

Oct. 31, 1978.

Robert P. Schwenn, Huntsville, for appellant.

William J. Baxley, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State.

BOWEN, Judge.

Anthony Jerome Smith was charged in a two count indictment with rape and carnal knowledge of a girl over twelve and under sixteen years of age. A jury found him guilty of rape and sentenced him to fifteen years' imprisonment. Both at trial and on appeal, Smith is represented by retained counsel of his own choosing. Though Smith was nineteen years of age at the time of the commission of the crime, application for treatment as a youthful offender was denied.

On June 3, 1975, Ellen was fifteen years old. Her sister, Barbara, was fourteen. Ellen and Barbara and their stepbrothers, Alan, fourteen, and Donald Lee, eighteen, had run away from their home in Fort Payne, Alabama, and come to Limestone County where they pitched their tent in a cotton field.

Though the sufficiency of the evidence is challenged in a motion for new trial, there being no motion to exclude the state's evidence or request for the affirmative charge, we do not feel compelled to detail all the evidence presented. Ellen testified that Smith and his two companions, Charles Hardy and John Lockett, each had sexual intercourse with her and that these acts were accomplished by force and fear and against her consent. She made a complaint of having been raped and the medical and physical evidence was consistent with recent sexual assault. Ellen's testimony alone constituted sufficient evidence, if believed by the jury, to sustain the conviction. Boddie v. State, 52 Ala. 395 (1875); Herndon v. State, 2 Ala.App. 118, 56 So. 85 (1911). In addition, her testimony was corroborated by that of her stepbrother, Alan. The state also introduced a written statement in which Smith admitted having had sexual intercourse with Ellen but maintained that it was with her consent.

At trial Smith denied any sexual act with Ellen and stated that he never even touched her. Under his testimony neither he nor Hardy and Lockett had anything to do with Barbara and Ellen.

I

Initially Smith contends that his motion to quash the indictment should have been granted because the jury commission (A) failed to comply with Alabama law in regard to filling the jury box and (B) excluded or omitted large numbers of legally qualified citizens, and placed so few names in the jury box as not to obtain a full cross-section of the county.

A.

Specifically Smith contends that the county jury commission failed to comply with Alabama law in filling the jury box (1) because its members did not meet annually between August 1st and December 20th as spelled out in Section 12-16-42, Code of Alabama 1975, and (2) because the clerk of the jury commission did not personally visit every precinct at least once a year to enable the jury commission to properly perform its duties under Section 12-16-41 (1975).

Prior to Smith's trial two hearings were conducted to determine the composition of the jury roll for Limestone County and the procedure followed by the jury commission of that county in compiling the jury roll. There is no question, based on the testimony of Mrs. Rogers, Clerk of the Jury Commission, and Mr. Johnston, President of the Jury Commission, that the commission did meet annually to discharge the major portion of their duties. However, instead of meeting between August 1st and December 20th, the commission regularly met in January and for the year 1974 completed their duties in March of that year. Mrs. Rogers testified that the first of the year meetings were customary for Limestone County and were held at that time according to the instructions of the circuit judge for that county.

The evidence further reveals that between January 10, 1975, and May 12, 1975, every card in the jury box was taken out and analyzed by the jury commission to ascertain whether or not each particular person that had been indexed was living at the present address indicated. After completing this duty the commission worked the remainder of the summer adding 751 names and removing twelve to bring the total on the jury roll to 2,902. This task was completed on September 26, 1975, and represented a concerted effort to enlarge the jury roll and simultaneously increase the percentages of blacks, women and young people between the ages of 21 and 30 on the jury roll.

Section 12-16-42 (1975) states that in order to compile the jury roll

"The jury commission shall meet in the courthouse at the county seat of the several counties annually, between the first day of August and the twentieth day of December."

Generally, the statutes prescribing the time for selecting the jury roll are held to be merely directory and, "if the list is at a later date properly selected and returned, the delay furnishes no ground of objection to the panel". 50 C.J.S. Juries § 159b.

The purpose of Section 12-16-42 is to "protect litigants and to insure a fair trial by an impartial jury". State ex rel. Gregg v. Maples, 286 Ala. 274, 278, 239 So.2d 198, 201 (1970). We fail to see how the jury commission's meeting annually beginning in January instead of August could in any manner fail to protect a defendant or deprive him of a fair trial. Accordingly we reject Smith's contention that because the meetings were not held between August 1st and December 20th of each year, that, as a matter of law, the duties performed by the Limestone County Jury Commission must be declared void due to noncompliance with statutory provisions. Such an interpretation as Smith advocates would pervert form over substance and result in an interpretation of Section 12-16-42 inconsistent with its basic import of safeguarding the administration of justice. While it is incumbent upon the jury commission to meet annually to conduct its business, the reference in Section 12-16-42 that the meetings occur between August 1st and December 20th must be construed as directory only and not mandatory in nature.

Smith also takes issue with the performance of the jury commission in light of Alabama Code Section 12-16-41 (1975) which states that the jury commission, in addition, to requiring the clerk of the commission to scan the registration lists, tax assessor's records, city directories, et cetera, is to require the clerk "to visit every precinct at least once a year to enable the jury commission to properly perform the duties required of it . . .." The evidence is unequivocal that Mrs. Rogers did not visit each of the precincts, but instead, Mr. Johnston, the president of the commission, carried out this assignment himself.

Again, this court is persuaded that the instruction in Alabama Code Section 12-16-41 (1975) that the clerk of the jury commission visit every precinct each year is directory and not mandatory as to who must perform this duty. It is mandatory that each precinct be visited annually so that the jury commission is enabled to obtain comprehensive information about those persons qualified to serve as jurors and to insure that no person is systematically eliminated simply on the basis of that person's residence. This is to prevent the possibility of the jury commissioners selecting only those residents of the county that they have personal knowledge of and who, in their opinion, are competent to serve at the time the jury list is prepared. Certainly a jury list containing names selected only from certain precincts of the county to the exclusion of others is fatally defective. Hanners v. State, 147 Ala. 27, 41 So. 973 (1906). Under our statute there are limits on who may visit each precinct to discharge this Code requirement. In Penn v. Eubanks 360 F.Supp. 699, 702 (M.D.Ala.1973), the federal district court determined that those charged with the administration of jury selection machinery could not transfer to other segments of the community the responsibilities placed on them by law. The duties assigned to the jury commission and its clerk must be performed by the commission and clerk and should not be delegated to third parties. Here there was no unauthorized delegation of authority. While the jury commissioners may not delegate any of their statutorily imposed duties to any other person or persons, we see no reason why the commission or any one of its members may not assume some of the duties of the clerk of the jury commission.

It is clear that the clerk of the jury commission is an integral component of the commission and according to statute must work closely with the commission in executing the duties demanded by law. More specifically, by way of Alabama Code Section 12-16-39 (1975), the clerk is to discharge his responsibilities "under the direction of the jury commission", and by authority of Alabama Code Section 12-16-40 (1975) serves at the pleasure of the commission as the commission has absolute authority to discharge the clerk and employ another at any time. Therefore, since it was decided by the jury commission that Mr. Johnston, the president of the commission, would visit each precinct, Mrs. Rogers, as clerk, was acting "under the direction of the jury commission" and was in no way derelict in her responsibility of visiting every precinct each year to gather names. By the same token, since Mr. Johnston, under the authority of the commission, did, in fact, visit every precinct for the purpose of gathering names for the jury roll, the duty was performed. Therefore the trial court did not err in refusing to quash the indictment on the ground that the jury commission failed to comply with Alabama law in filling the jury box.

B.

The appellant alleges that the jury commission omitted or excluded large numbers of legally qualified citizens from the jury roll and placed so few names in the jury box as not to obtain a full cross-section of the community.

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