Untreiner v. State

Citation41 So. 285,146 Ala. 26
PartiesUNTREINER v. STATE.
Decision Date17 May 1906
CourtSupreme Court of Alabama

Appeal from Circuit Court, Monroe County; John T. Lackland, Judge.

"Not officially reported."

George Untreiner was convicted of murder, and he appeals. Reversed.

The defendant was indicted and tried for murder in the first degree. In selecting the jury to try the case from the special venire, the judge had the names of six persons drawn from the hat, and had the six come around and be sworn, and then asked each the qualifying questions, permitting all six to answer the same at one and the same time. To this the defendant excepted. Before the jury was completed the venire was exhausted. The jury as selected was composed of eleven men. One more was needed to complete it. The court ordered the sheriff to summon two qualified citizens, write their names on slips of paper, and place the same in a hat. The defendant demanded to know the two so selected before they were drawn from the hat. The court declined to inform him as to the names until they were drawn, and as to this action of the court the defendant excepted. The other facts sufficiently appear in the opinion.

At the conclusion of the testimony, the defendant requested the following charges in writing: (1) The court charges the jury that, if they do not believe the evidence, they should find for the defendant. (2) The court charges the jury that, if they do not believe the evidence, they cannot find for the state. * * * (4) The court charges the jury that in cases like this it is the province of the defendant to set up self-defense, and in doing so he may show that at the time he fired the fatal shot there was a necessity to take life, or that the circumstances were such as to create in his mind a reasonable belief that it was necessary to save life or to prevent great bodily harm and there was no reasonable mode of escape. If the evidence tends to establish the foregoing ingredients, the burden then is on the state to show that the defendant was not free from fault in bringing on the difficulty. * * * (7) The court charges the jury that manslaughter in the first degree is the unlawful and intentional killing of a human being without malice expressed or implied, and manslaughter committed under any other circumstances is manslaughter in the second degree. * * * (10) The court charges the jury that it is their sole right to believe or not to believe, and the court cannot tell them what to believe, or what weight they must give to any testimony. (11) The court charges the jury that, if the killing in this case was without malice the defendant would not be guilty of a higher grade of offense than manslaughter in the first degree. (12) The court charges the jury, if the killing was not malicious, then the defendant would not be guilty of murder in either degree. * * * (14) The court charges the jury that, if they find the defendant guilty of manslaughter in the first degree, the punishment fixed by law in the discretion of the jury is imprisonment in the penitentiary for not less than one, nor more than 10 years or by hard labor for the county for not more than two years nor less than a year and a day. * * * (16) The court charges the jury that, if they find the defendant guilty of manslaughter in the second degree, the punishment fixed by law in the discretion of the jury is imprisonment in the county jail for one year or sentence to hard labor for the county for not more than one year, and may also be fined not more than $500--any amount under $500."

The defendant was convicted of murder in the second degree and sentenced to ten years in the penitentiary.

J. N Miller and Barnett & Bugg, for appellant.

Massey Wilson, Atty. Gen., for the State.

DOWDELL J.

The defendant was indicted at the spring term, 1904, of the circuit court of Monroe county for murder in the first degree. On this indictment he was tried at the Spring Term 1906. He was tried and convicted of murder in the second degree and sentenced to imprisonment in the penitentiary for a term of ten years. Before entering upon the trial the defendant made a motion to quash the indictment, upon the ground that the grand jury which preferred the indictment had not been drawn according to law, in that the jury commissioners in drawing the grand jury drew 24 jurors, which was in excess of the number provided by law to be drawn. The grand jury as organized by the court from the list of names so drawn by the jury commissioners, while it contains the names of the last three jurors drawn by the commissioners, yet by reason of nonattendance and excuses did not exceed the number required by the statute to constitute a grand jury. The court overruled the motion to quash, and in so doing committed no error. Rogers v. State (Ala.) 40 So. 572; sections 4997, 5269 of the Cr. Code, 1896.

In the selection of the jury from the special venire for the trial of the case, in the course adopted by the trial court no error was committed. Brown v. State, 141 Ala. 80, 37 So. 408.

After the special venire had been exhausted, before the completion of the jury, the defendant was not entitled to a list of the talesmen summoned to complete the jury. Cr. Code 1896, § 5009.

There was a variance in the middle initial of the names of the jurors, Schneider, Smith, and Brantley; but this constituted no ground for discarding their names. Kimbrell v. State, 130 Ala. 40, 30 So. 454. There was no error in refusing to discard the name of the juror Johnson, because of a variance in the name on the list served and that drawn from the hat. It was decided in Teague v. State (Ala.) 40 So. 312, that the annexing of "Jr." to a name constituted no part of the name.

The juror Marshall, when examined on his voir dire, answered that he was opposed to capital punishment, but also stated that he would hang some men. The court permitted him to be challenged for cause by the state...

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10 cases
  • Cooper v. State
    • United States
    • Tennessee Supreme Court
    • 28 Junio 1911
    ...deceased, in which case the slayer could not avail himself of the danger to his brother as an excuse for the killing. In Untrenor v. State, 146 Ala. 26, 41 So. 285, the evidence showed that the difficulty resulting in deceased's death was the continuation of a quarrel between him and defend......
  • Valentine v. State
    • United States
    • Alabama Court of Appeals
    • 27 Agosto 1923
  • Aaron v. State, 3 Div. 955
    • United States
    • Alabama Supreme Court
    • 28 Septiembre 1961
    ...v. State, 226 Ala. 117, 145 So. 436, this court approved qualifying and impaneling the jury in groups of twelve, and in Untreiner v. State, 146 Ala. 26, 41 So. 285, in groups of six. The trial court committed no error in the instant case by qualifying the jury in Appellant sought to 'person......
  • Massey v. State
    • United States
    • Alabama Court of Criminal Appeals
    • 17 Octubre 1972
    ...v. State, 226 Ala. 117, 145 So. 436, this court approved qualifying and impaneling the jury in groups of twelve, and in Untreiner v. State, 146 Ala. 26, 41 So. 285, in groups of six. The trial court committed no error in the instant case by qualifying the jury in 'Appellant sought to 'perso......
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