Andrews v. State

• Decision Date: 11 January 1911
• Citation: 174 Ala. 11,56 So. 998
• Parties: ANDREWS v. STATE.
• Court: Alabama Supreme Court

56 So. 998

174 Ala. 11

ANDREWS v. STATE.

Supreme Court of Alabama

January 11, 1911

Rehearing Denied Dec. 21, 1911.

Appeal from Criminal Court, Jefferson County; S. L. Weaver, Judge.

John Andrews was convicted of murder, and he appeals. Reversed and remanded.

McClellan and Mayfield, JJ., dissenting in part.

The facts as to the venire sufficiently appear in the opinion. There were seven pleas in abatement, but the following will serve to illustrate the matters set up in said pleas "And now comes the defendant in the above-entitled cause, by attorney, and pleads and says that the state of Alabama ought not to further prosecute the said indictment against him, because heretofore, to wit, at the April term of said court, the grand jury of said county, upon their oaths in an indictment found by them, present that John Andrews unlawfully and with malice aforethought killed Taylor Johnson by shooting him with a pistol, which said indictment is in words and figures as follows, to wit: [Here follows the indictment in Code form for murder in the first degree.] And that heretofore, to wit, at the September term, 1909, of said court, which court had jurisdiction to hear and try said cause, before the Honorable Samuel L. Weaver, associate judge of said court, the defendant was duly arraigned and placed upon trial before a jury of 12 men, duly sworn and impaneled in said cause, upon a plea of not guilty; that said jury after hearing the evidence and the charge of the court, on to wit, the 18th day of September, 1909, in the afternoon of said day, retired to consider of their verdict; that thereafter on, to wit, the 20th day of September, 1909, and before the adjournment of said court, and without the consent of the defendant, and against his objection, the said jury and jurors were discharged by the court without any legal necessity therefor, and without rendering a verdict. And defendant says that he is the same identical person charged in said indictment, and that he is now charged in this present indictment as having unlawfully and with malice aforethought killed Taylor Johnson by shooting him with a pistol, which offense the defendant alleges is based upon and is of the same transaction and act as alleged in the indictment aforesaid, and which said indictment aforesaid, and the indictment upon which the defendant is now arraigned is one and the same indictment. And the defendant alleges that said jury was discharged without the consent of the defendant, and before the said jury had ample and sufficient time to consider of their verdict, and before the discharge of said jury was authorized by law; that said jury was discharged aforesaid before they had had a reasonable time given them to consider of their verdict; that there was no manifest necessity for the discharge of said jury or jurors; that the ends of justice would not have otherwise been defeated, had said jury not been discharged as aforesaid. All of which the defendant is ready to verify," etc.

Allen & Bell and Thomas T. Huey, for appellant.

R. C. Brickell, Atty. Gen., for the State.

ANDERSON, J.

Section 9 of the Constitution of 1901 embraced all of section 10, art. 1, of the Constitution of 1875 against twice in jeopardy, but in addition thereto provides: "But courts may, for reasons fixed by law, discharge juries from the consideration of the case, and no person shall gain an advantage by reason of such discharge of the jury." We cannot agree that this change in the organic law was made only to authorize the Legislature to provide by statute for the discharge of juries for the same and only reasons authorizing a discharge under the decisions of this court prior to the last constitutional enactment. To so hold would render the addition to section 9 of the Constitution nugatory, and section 7314 would be a useless enactment. We think that the constitutional change was made to extend the right to discharge juries for causes not then existing and to delegate to the Legislature authority to provide for a mistrial for any reason to be fixed by law. The Legislature did by section 7314, Code 1907, provide for the discharge of juries without the consent of the parties, when in the opinion of the court or judge there is a manifest necessity for the discharge, or when the ends of justice would otherwise be defeated, requiring that the reason or cause of discharge shall be entered upon the minutes of the court. The statute conforms to the Constitution and fixes the reasons for a discharge, to wit, when there is a manifest necessity for same, or when the ends of justice would otherwise be defeated.

The statute does not authorize the trial court to fix the reason for the discharge, but merely authorizes him to determine whether or not the reason fixed by law exists. It was evidently not intended that the Legislature should undertake to define and write into the face of the statute what would and must constitute a necessity in every case or particularize the instances wherein the ends of justice would be defeated. The statute fixes the reasons for a discharge, and wisely leaves it to the opinion or discretion of the judge or court to determine whether or not the reason, as fixed by law for the discharge, really exists. If, therefore, a jury is discharged, and the reasons for doing so, as found and entered by the judge, are sufficient under the statute, this court will treat the same as conclusive, except, perhaps, in a case of fraud or a gross abuse of discretion.

The jeopardy relied upon was the unauthorized discharge of the jury. Therefore the plea should have set up the order of discharge or else averred that no order was entered upon the minutes, and, failing to contain this material and important averment, they were subject to the state's demurrer. While form 7, p. 843, 3 Code 1907, is made sufficient, an examination of same will disclose that the last blank contemplated that it be filled with the matters and facts constituting a bar to a subsequent prosecution, and the defendant should, therefore, set out an order improperly made or aver that no legal or valid order was made.

This case, however, must be reversed, owing to error in fixing the venire to try the defendant. The order fixed 80 persons to try the case which should have been composed of the regular jurors summoned and a sufficient number to be specially drawn to equal the number fixed. There were only 47 regular jurors summoned, which, with the special number drawn, made only 77 and not 80, as required by the order. Jackson v. State, 55 So. 118; Bailey v. State, 55 So. 601.

DOWDELL, C.J., and SIMPSON and SOMERVILLE, JJ., concur.

McCLELLAN J.

Two matters are determined on this appeal, viz.: (a) The insufficiency of the pleas of former jeopardy; and (b) that reversible error inhered, as will be stated, in the constitution of the venire to try appellant.

In the conclusion (only) upon the first matter (a) I concur. From the prevailing view in the latter matter I dissent. My opinion, and the reason supporting it, which respect to the pertinent construction of section 9 of the Constitution of 1901, along with Code 1907, § 7314, will be stated after the venire matter has been briefly considered. The prevailing opinion thus points out the error upon which the reversal is rested: "The order fixed 80 persons to try the case, which should have been composed of the regular jurors summoned and a sufficient number to be specially drawn to equal the number fixed. There were only 47 regular jurors summoned, which, with the special number drawn, made only 77 and not 80, as required by the order. Jackson v. State, 55 So. 118; Bailey v. State, 55 So. 601." Two distinct reasons impel me to the conclusion that no reversal on this point should enter. The first is that by express provision in section 29 of the act approved August 31, 1909 (Acts [Sp. Sess.] 1909, pp. 305-320), the only objection that can be taken to a venire is "fraud in drawing or summoning the jurors," thereby expressly excluding the objection upon which the reversal is rested. Section 29 reads: "It is hereby expressly declared to be the intent of the Legislature in the enactment of this law to make the provisions hereof in the relation to the selection, drawing, summoning, or impaneling of jurors directory merely, and not mandatory. The jurors selected, drawn, summoned, and impaneled under the provisions of this act, whether at or earlier or later day than required by this act, must and shall in all respects be deemed legal, and to possess in full in every respect power to perform all of the duties belonging to grand and petit jurors. And no objection can be taken to any venire of jurors except for fraud in drawing or summoning the jurors." It is said in Jackson's Appeal, 55 So. 120, that the quoted section "has no application as to what constitutes a legal venire, but relates to the manner of selecting, drawing, and impaneling jurors," and upon this interpretation a ruling was made in Bailey's Appeal, 55 So. 601, 603.

Apart from any other factor, it is too evident for doubt that all of section 29 was not considered, or given effect, when the matter was decided upon the reasons given in Jackson's Appeal. Obviously no due account was taken of the last provision in that section (29), which reads, "And no objection can be taken to any venire of jurors, except for fraud in drawing or summoning the jurors," because the reason given by the court in Jackson's Appeal points unerringly and alone to the provisions of the section just preceding that above quoted. Not content with those (preceding) curative provisions, the lawmakers employed the broadest terms to avoid the availability or effect of any other possible objection to the venire except fraud or...