Baker v. State

• Decision Date: 07 June 1899
• Citation: 26 So. 194,122 Ala. 1
• Parties: BAKER v. STATE.
• Court: Alabama Supreme Court

26 So. 194

122 Ala. 1

BAKER v. STATE.

Supreme Court of Alabama

June 7, 1899

Appeal from circuit court, Madison county; H. C. Speake, Judge.

George Baker was convicted of the crime of murder, and appealed. Reversed.

The appellant in this case was indicted and tried for the murder of Joe McCloud, was convicted of murder in the first degree and sentenced to the penitentiary for life. The defendant was arraigned on February 22, 1899, which was the third week of the circuit court of Madison county, and the 27th of February, 1899, which was Monday of the fourth week, was set for the trial of the cause, and 40 names were drawn from the jury box, which, together with the panel of the petit jurors drawn and summoned for the fourth week of the court, was to constitute the venire from which the jury to try the defendant was to be selected. When the cause was called for trial, the defendant made nine motions, which were as follows: (1) "Comes the defendant, and moves the court to quash the venire summoned in said cause on the following grounds: First. Said venire was not drawn from a jury box that had been filled as was required by law. Second. Said venire was drawn from a jury box illegally filled, and the jury drawn to serve the fourth week of the term was drawn before the box had been filled, and at the same time that the grand jury was drawn the jury commissioners determined among themselves which persons of the persons drawn should sit on the grand jury and which should sit on the petit jury. Third. The names which were in the jury box at the time the jury commissioners began to fill the box were taken out and destroyed, and the venire of this case was drawn from the box so filled. Fourth. The venire was drawn from a jury box filled by jury commissioners who knowingly disobeyed the directions and mandates of law, particularly in this: that they did not prepare a list of the names selected by them stating thereon the place of residence and occupation of each person, when known to them, and the slips on which the names of the persons mentioned in the list prepared by the jury commissioners does not show the occupation of a single person of the venire drawn in the case." (2) "Comes the defendant, and moves the court to quash the venire of petit jurors for the term because the same was illegally drawn, in that the jury commissioners have failed to comply with the plain mandates of the law regulating the drawing of jurors by omitting to place upon the list and slips drawn by them when filling the jury box and selecting said venire the occupation of said jurors when known to them." (3) "Comes the defendant, and moves the court to allow him or his attorneys to examine and inspect the jury box from which was drawn the venire in this case, and that your honor will enter all proper orders necessary to secure said privilege, and the following grounds are offered for said motion: First. The jury commissioners were guilty of fraud in that they sought to prefer their friends in the matter of selecting and drawing juries, and that their conduct was in violation of law and order." (4) "Comes the defendant in proper person and by attorney, and moves the court to quash the special venire drawn for the trial of the above-entitled cause, and assigns as the grounds of said motion that said venire was not drawn according to the law prescribing the requirements for the drawing or venires in capital cases, in that the jury commissioners failed or omitted to place upon the list drawn for petit jurors the occupation of each juror when known to them, and further failed or omitted to place the occupations of said jurors, when known to them, upon the slips in the regular jury box." (5) "Comes the defendant, and moves to quash the venire summoned to try this case because a list of the jurors selected by the jury commissioners was not put in a sealed envelope, and deposited in the office of the probate judge, as required by law." (6) "Comes the defendant, and moves the court to quash the indictment because the grand jury that preferred the same was not drawn and impaneled according to the mandates and requirements of the law, in this: That the jury commissioners, when they began to fill the jury box destroyed all the names that were in the box at the time they began to fill the same, and at the time said grand jury was drawn the commissioners had not completed their work of filling said box. Second. Because the jury commissioners did not place on the list prepared from which names were taken to fill the jury box the occupation, when known to them, of each person, as required by law. Third. Said jury commission drew more than 21 names for grand jurors, and from that list selected the names from which the grand jury was made up. Fourth. The petit juries and grand juries were drawn at one and the same time, and the jury commissioners determined which jurors should serve on the grand jury and which should serve on the petit duries from the list so drawn, or as the list was drawn." (7) "Comes the defendant, and moves the court to quash the venire on the ground that the said venire was not drawn one day before the case was set for trial." (8) "Comes the defendant, and moves the court to quash the venire on the ground that two of the jurors who were summoned to attend this court were excused from attending and sitting on the trial of this case in the absence of defendant, and without his consent." (9) "Comes the defendant, and moves the court to quash the venire on the ground that the jury organized for fourth week of the term is not the jury summoned and served on the defendant at least one day before the trial." In compliance with the motion numbered 3, the court ordered the jury box to be brought into court, and appointed and allowed the attorneys for the defendant to examine the same. On the hearing of the other motions it was shown that the jury commissioners had failed to put on the slips of the lists of jurors drawn the occupations of any of the persons drawn on the venire to try this case. As to the motion numbered 8, the proof showed that no jurors were excused, and the two jurors referred to in said motion were not excused, but their names were placed in the hat, and were drawn therefrom, and the defendant passed on each of them. Each of the motions except the motion numbered 3 was overruled and disallowed, and to the ruling of the court in overruling each of said motions the defendant separately excepted.

The evidence for the state tended to show that Joe McCloud was killed by being shot with a gun while riding along the public highway, near a place in the road where there was a cedar thicket on either side. There was no evidence of a difficulty between the deceased and his slayer. One James B. White, a witness for the state, testified, among other things, that he saw the body of the deceased, the morning after he was killed, lying on the public road where he fell; that upon looking for tracks they found what they took to be the tracks of the assassin, which led more in the direction of the house of one Alex Lacey than in the direction of the defendant's house. On cross- examination of this witness he was asked by the defendant the following question "Was not the deceased a fussy, turbulent, bloodthirsty character?" The solicitor for the state objected to this question. The court sustained the objection, and the defendant duly excepted. The said witness was then asked by the defendant: "Did not the deceased tell you of a difficulty which he had with Alex Lacey, and of the bad feeling existing between them?" The state objected to this question, which objection the court sustained, and the defendant duly excepted. This witness was then asked by the defendant the following question: "Do you know whether Alex Lacey was arrested charged with this same offense?" The court sustained the state's objection to this question, and the defendant duly excepted. Upon the examination of one of the state's witnesses he was asked by the solicitor, "How far does the defendant's mother live from here?" The defendant objected to this question on the ground that it called for illegal and immaterial evidence. The court overruled the objection, and the defendant duly excepted. Upon the examination of Jim McCloud as a witness for the state, he testified that he knew the defendant and the defendant's father, and, upon his further testifying that the father of the defendant owned a gun, the defendant moved to exclude the testimony of the witness as to the defendant's father having a gun, upon a ground that it was immaterial and incompetent evidence. The court overruled the objection, and the defendant duly excepted. Elijah Langford, a witness for the state, testified that on the night of the...