Biggs v. State
| Decision Date | 25 November 1924 |
| Docket Number | 1 Div. 590 |
| Citation | 103 So. 706,20 Ala.App. 449 |
| Parties | BIGGS v. STATE. |
| Court | Alabama Court of Appeals |
Appeal from Circuit Court, Monroe County; John D. Leigh, Judge.
Lee Biggs was convicted of murder in the second degree, and he appeals. Affirmed.
Certiorari denied by Supreme Court in Ex parte Biggs, 103 So. 707.
See also, 19 Ala.App. 160, 95 So. 908.
Hybart & Hare, of Monroeville, for appellant.
Harwell G. Davis, Atty. Gen., and Lamar Field, Asst. Atty. Gen., for the State.
The defendant was indicted for murder in the first degree convicted of murder in the second degree, and sentenced to imprisonment in the penitentiary for a term of 10 years.
The bill of exceptions discloses that two of the jurors, who on their voir dire stated that they were related to the defendant within the ninth degree by consanguinity, were excused by the court ex mero motu, and exception duly reserved by the defendant.
Sections 18 and 32 of the jury law of 1909 (Acts Special Session 1909 pp. 312, 317) were amended by act approved September 29, 1919 (Acts 1919, p. 1039). Section 32 as amended provides that on the day set for trial of a capital case, if the cause is ready for trial, the court must inquire into and pass upon the qualifications of all persons who appear in court in response to the summons to serve as jurors, and shall cause the names of all those whom the court may hold to be competent jurors to try the defendant to be placed on lists from which to strike until only 12 names remain thereon which shall constitute the jury to try the defendant.
One of the grounds for challenge, set out in section 7276, Code 1907, is that the juror is connected by consanguinity within the ninth degree with the defendant. The question for determination here is whether the court of its own motion may excuse jurors related to the defendant within the prohibited degree, when not challenged for cause by the state.
In Leith v. State, 206 Ala. 439, 90 So. 687, a juror on his voir dire stated that he had a fixed opinion as to the guilt or innocence of the defendant which would not be removed after he heard the testimony. Another juror stated that he had a fixed opinion as to the guilt or innocence of the defendant, and that he did not think the testimony could be received and weighed by him without being biased. The court announced that each of the jurors was subject to challenge for cause; both the state and the defendant waived the challenge; the court of its own motion excused each of the jurors, and the defendant duly excepted. One of the grounds of challenge laid down in section 7276, Code 1907, is that the juror has a fixed opinion as to the guilt or innocence of the defendant, which would bias his verdict. The court in this case held that there was no abuse of official power by the court in setting aside, ex mero motu, the jurors, but that it was a discharge of its high duty and office in the exercise of the discretionary powers in securing to the defendant the right of trial by an impartial jury. We might rest the decision in the instant case upon the Leith Case, supra, for in each case the court of its own motion excused jurors upon one of the grounds for challenge set down in Code, § 7276, supra. In the Leith Case the jurors had a fixed opinion as to the guilt or innocence of the defendant which would bias their verdict; in the instant case they were related to the defendant within the ninth degree by consanguinity.
The following have been held cause for challenge: That juror served on trial of another person charged with selling liquor to the same intemperate person (Smith v. State, 55 Ala. 1); that juror served on previous trial of same case ( Commander v. State, 60 Ala. 1; Baldwin v. State, 111 Ala. 11, 20 So. 528); that juror sat on trial of another person convicted at the same term of like offense, at same time and place (Wickard v. State, 109 Ala. 45, 19 So. 491); that juror is witness and interested in a similar prosecution against the defendant (Carr v. State, 104 Ala. 4, 16 So. 150); that juror was on the grand jury which found the indictment (Williams v. State, 109 Ala. 64, 19 So. 530); in capital case, where juror, who was on the regular jury for the week, had previously convicted prisoner's codefendant, as to whom there had been a severance (Wesley v. State, 61 Ala. 282); where juror was sick (Powell v. State, 48 Ala. 154); where juror could not understand the English language (Long v. State, 86 Ala. 36, 5 So. 443). See, also, 35 Corpus Juris,§ 310 (2), p. 307.
In Fariss v. State, 85 Ala. 1, 4 So. 679, pending the drawing of jurors for the purpose of selecting and impaneling the jury, five several names were drawn, each of whom was of the regular jurors summoned for the week. The court announced, in reference to each of...
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McWhorter v. State
...with a fair and impartial jury. In doing so, he did not abuse the wide discretion granted to him for this purpose. Biggs v. State, 20 Ala.App. 449, 103 So. 706." Rogers v. State, 365 So.2d 322, 331 (Ala.Cr. Thus, under these guidelines, it was proper for a trial court to "ex mero motu" excu......
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McWhorter v. Dunn
...with a fair and impartial jury. In doing so, he did not abuse the wide discretion granted to him for this purpose. Biggs v. State, 20 Ala.App. 449, 103 So. 706.Rogers v. State, 365 So.2d 322, 331 (Ala.Cr.App. 1978).Thus, under these guidelines, it was proper for a trial court to "ex mero mo......
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Watson v. State
...request number one does not fall within that section. Beasley v. State, 39 Ala.App. 182, 96 So.2d 693 (1957); Biggs v. State, 20 Ala.App. 449, 103 So. 706 (1924). Of importance here, however, is the fact that the trial judge did ask the defendant's request number two: "Is any juror personal......
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Rogers v. State
...with a fair and impartial jury. In doing so he did not abuse the wide discretion granted to him for this purpose. Biggs v. State, 20 Ala.App. 449, 103 So. 706. Under these circumstances, excusing the jurors was not A fourth claim of error concerns the admission of evidence of specific state......