Andrews v. State
Decision Date | 11 January 1911 |
Citation | 174 Ala. 11,56 So. 998 |
Parties | ANDREWS v. STATE. |
Court | Alabama Supreme Court |
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.
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 etc.
Allen & Bell and Thomas T. Huey, for appellant.
R. C. Brickell, Atty. Gen., for the State.
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.
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: 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 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...
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