Bell v. State

• Decision Date: 17 June 1897
• Citation: 115 Ala. 25,22 So. 526
• Parties: BELL v. STATE.
• Court: Alabama Supreme Court

22 So. 526

115 Ala. 25

BELL v. STATE.

Supreme Court of Alabama

June 17, 1897

Appeal from circuit court, Marshall county; W. W. Haralson, Special Judge.

William Bell was convicted of murder in the second degree, and appeals. Reversed.

The indictment was found in the fall of 1894. Upon the arraignment of the defendant, he pleaded not guilty, and upon a day being set for trial, the sheriff was ordered to summon "one hundred persons as jurors for the trial of his case, including those summoned on the regular jury for" the week of the arraignment for the trial "and in attendance upon the court." The sheriff served upon the defendant, at least one day before the day set for his trial, a copy of the indictment and a list of the jurors summoned for his trial, including the regular jurors summoned for the week, and in attendance upon the court. Upon the cause being called for trial, and before entering thereupon, the defendant moved the court to quash the venire upon the following grounds: (1) That the sheriff did not serve the defendant with a list of the jurors summoned and in attendance on the court during the week set for his trial, in that the name of L. H. Turner, a juror who was in attendance on the court, and impaneled as a regular juror, was omitted from the list, and the name of one T. H. Turner, who was not in attendance upon the court, and was not summoned as a juror, was inserted in lieu thereof, and that the name of R F. B. St. John, a regular juror summoned and in attendance for the week, was omitted, and in lieu thereof was inserted the name of R. T. B. St. John. (2) Because the court, without the consent of the defendant, and in the absence of the defendant and his counsel, excused from attendance upon the court two jurors, who had been regularly drawn and summoned as such for the week of the court in which the trial was to be had; and therefore the names of those two jurors are not included in the names of the venire served upon the defendant. (3) Because there was not served upon the defendant or his counsel a copy of the indictment in this cause, in that the organization of the court at the term at which the indictment purports to have been returned was not set out in the paper purporting to be a copy, and that the organization of the grand jury finding said indictment is not set out in the paper served upon the defendant, and that the caption of the indictment in this case was not set out in said paper. (4) That the names of Lewis H. Turner and J. F Kennamer, who are of the regular jurors who were in attendance on the court the week of the defendant's trial, so set, were not included in the list served upon the defendant. In reference to this motion, it was admitted that the copy of the indictment served upon the defendant did not contain the organization of the court at the time the indictment was preferred, nor the organization of the grand jury by which said indictment was found, and that the paper served upon the defendant was only the indictment itself, as a part of the record. It was further shown that the third name on the list of jurors served upon the defendant was T H. Turner, whereas the name on the regular jury for the week was L. H. Turner, and that no person named T. H. Turner was in attendance, but that L. H. Turner was; that the fourth name on the list of jurors served on the defendant was R. T. B. St. John, whereas the name of the regular juror for the week coming fourth was R. F. B. St. John, and it was shown that R. F. B. St. John was in attendance as the regular jury, and no person named R. T. B. St. John was. It was further shown that the twenty-sixth name on the list of jurors served on the defendant was J. F. Kennaner, whereas the twenty-sixth name on the regular jury for the week was J. F. Kennamer; and that J. F. Kennamer was in attendance as the regular jury, while there was no such person as J. F. Kennaner served nor in attendance. The court overruled the defendant's motion to quash the venire, and defendant excepted. The bill of exceptions then recites: "The court then, without discarding the names of the three persons mentioned in the above motion, and without summoning, or ordering summoned, any persons to take places of these jurors, ordered the sheriff to place the names of the jurors in a box. The fifteenth name drawn from the box by the sheriff was number twenty-six, and the juror called was J. F. Kennamer; and, on the defendant informing the court that this number on the list served on him was J. F. Kennaner, the court directed this juror to stand aside, but did not order the sheriff to summon any one to supply his place, and ordered the sheriff to draw another name from the box. This the sheriff did, drawing number sixty-four, which juror was challenged peremptorily by the state. The court then ordered the sheriff to draw another name from the box, which the sheriff immediately did, drawing number twenty-three. After this juror was drawn, the solicitor suggested to the court that the sheriff should be directed to summon a juror to supply the place of the juror whose name had been discarded. The sheriff summoned one John Lewis as a juror, and proceeded to write his name upon a slip of paper to put in the box, and to this defendant objected, because two names had been drawn from the box after said Kennamer had been discharged, and because St. John's and Turner's and Kannamer's names had been placed in the box, and because they were not discarded, and others summoned to supply their places, before proceeding to draw the jury. The court thereupon directed the sheriff not to put this person's name, John Lewis, so summoned, in the box. The defendant then objected on the above grounds to proceeding with the selection of the jury. The court overruled the objection, and the defendant excepted. During the drawing of the jury, number fifty-seven was drawn from the box by the sheriff, and R. C. Harris answered. During his examination by the court as to his qualification as a juror, he stated that, since he had been summoned as a juror, he had been summoned as a witness for the defendant. Thereupon the court, without said juror being challenged by either side, but on its own motion, ordered said juror to stand aside, which he did, and to this action of the court the defendant objected and excepted. When the next juror was drawn, and after his examination by the court, and after he was accepted by the state, defendant objected to having the juror put upon him, because one hundred names were not put in the box at the commencement, excluding the names of the three jurors above named, Turner, St. John, and Kennamer, and because three persons had not been summoned to supply their places, and defendant objected to proceeding with the selection of the jury. The court overruled the objection, and required the defendant to proceed, and to this the defendant excepted. This objection was made to each juror subsequently called. During the further drawing of the jury, the sheriff drew from the box the number seventy-four, and W. N. Claburn answered thereto. After he was accepted as a juror by the state, and put on the defendant, defendant objected to having him put on him, as he was summoned as a regular juror for the week, and had been discharged by the court, having served as a regular juror at the spring term, 1896, of the court, his name not appearing in that portion of the list served on defendant designated as regular jurors. The court overruled the objection, and the defendant excepted. During the further drawing of the jury, the sheriff drew from the box number three, to which L. H. Turner answered when called. The court, on defendant calling attention to the discrepancy in the name 'L. H.' and 'T. H.,' as above set out, ordered this juror to stand aside, and directed the sheriff to summon a qualified juror to supply the place; and the sheriff then summoned John Lewis, and put his name in the box, and then, under the direction of the court, drew therefrom, when number fifty-two was drawn, and W. M. Large was called, examined by the court, and accepted by the state; and defendant objected to having this juror put on him, because thirty-eight names had been drawn, and ten jurors accepted, before the name of said Turner had been discarded, and a juror summoned to supply his place. The court overruled the objection, and defendant excepted. During the further drawing of the jury, the juror St. John, number four, was drawn, and likewise discarded, and another summoned, under the direction of the court to supply his place. Defendant objected to this being done, because the names were not discarded, and jurors to supply places summoned, before commencing to draw the jury. After this, and before the names of either of the jurors who had been summoned to supply the place of the three discarded jurors had been drawn from the box, the defendant had exhausted his twenty-one peremptory challenges, and, after they were exhausted, he objected to proceeding with the drawing of the jury, because the names of the jurors to supply the places of the jurors who had been discarded had not been placed in the box in the commencement, and he had not had an equal chance to have said jurors drawn before his challenges were exhausted, and because he had not had an [equal chance to have] had one of them in place of some other juror taken or to be put on him. This objection the court overruled, and defendant excepted. The next juror drawn, the state challenged peremptorily, and to this the defendant objected, because of the irregularity in the discarding the jurors. The court overruled the objection, and the defendant excepted." The testimony for the state tended to show that, as the deceased and two other persons were going to...