Blevins v. State

• Decision Date: 30 June 1920
• Docket Number: 7 Div. 53
• Citation: 204 Ala. 476,85 So. 817
• Parties: BLEVINS v. STATE.
• Court: Alabama Supreme Court

85 So. 817

204 Ala. 476

BLEVINS v. STATE.

7 Div. 53

Supreme Court of Alabama

June 30, 1920

Appeal from Circuit Court, DeKalb County; W.W. Haralson, Judge.

Richard Blevins, alias Rich Blevins, was convicted of murder in the second degree, and he appeals. Reversed and remanded.

J Valdor Curtis, of Ft. Payne, Chas. H. Neighbors, of Chattanooga, Tenn., and Isbell & Scott, of Ft. Payne, for appellant.

J.Q Smith, Atty. Gen., for the State.

SAYRE J.

The name of "John Whited, Farmer, Beat 13, Sulphur Spgs.," appeared on the venire ordered for the trial of appellant defendant. John W. Whited of beat 25, a different man, was summoned by the sheriff and appeared for service as a juror. John Whited of beat 13 was not summoned, nor did he appear. Defendant moved that the cause be continued until John Whited could be summoned. The court solved the question thus presented by ordering the name of John Whited to be stricken from the venire. The defendant then "objected to being placed upon trial with the number [of jurors] as it appeared with the name of John Whited stricken off." For aught appearing there was no showing as to why John Whited of Sulphur Springs had not been summoned. One witness testified that he knew "John Whited up at Sulphur Springs, in beat No. 13," and that John W. Whited of beat No. 25 exhibited to the witness, was not the man he knew in beat No 13. The court committed error. Defendant raised the question in perhaps the only way open to him (Zininam v. State, 186 Ala. 9, 65 So. 56), and, in the absence of some showing of reason for proceeding without John Whited of Sulphur Springs, we can only presume that if he had been summoned he would have appeared and served. Such was the opinion of Mayfield J., in Tennison v. State, 188 Ala. 90, 66 So. 112, an analogous case. That opinion was not concurred in by the court, for the reason that defendant in that case had not attempted to raise the question "until after the selection of the jury." In Carmack v. State, 191 Ala. 1, 67 So. 989, however, a similar question was raised by timely objection, and there the court held a similar ruling to be reversible error. And when the same question was presented to the Court of Appeals it, of course, followed the ruling in Carmack v. State, supra. Wright v. State, 15 Ala.App. 91, 72 So. 564, and Cain v. State, 16 Ala.App. 303, 77 So. 453. It thus appears that the error of which appellant complains was not the error of a mere ministerial or executive officer, such as, by the act approved August 31, 1909 (section 32, p. 320; same provision in act approved September 29, 1919, p. 1042), shall not constitute sufficient ground for quashing the venire or continuing the cause, but was error on the part of the court, and must work a reversal. The statute does not intend that the sheriff may without rime or reason, or for reasons of his own, reduce the number of jurors to which a defendant becomes entitled under the order of the court for a special venire. The proper practice would have been to inquire whether proper diligence had been exercised to summon the juror named in the venire, and, if not, then to postpone the selection of the jury until the person named to serve as a juror could be brought to court. Troublesome, perhaps; but a man on trial for his life must have every right the law gives him, and his rights can by no means be committed to the discretion of the sheriff.

Deceased, who was a deputy sheriff, another deputy who was killed at the same time, and the sheriff in his own proper person, had gone to the house where defendant lived with his mother, two sisters, and Harry Blevins; the last named being jointly indicted with appellant. The three officers to whom we have referred went into the house and awaited the coming of defendant and his brother, leaving the automobile in which they had approached the place in the woods, 150 to 200 yards away, and in charge of one York. In a short while the young men--defendant and his brother--came home and a fusillade followed immediately upon their entry into the house. The two deputies were killed and the sheriff was wounded, as were the defendant and his brother. The evidence was in dispute as to who started the shooting.

It appeared without objection that the officers had 15 gallons of whisky in the automobile, and it appeared also that they had a warrant for defendant, issued upon an indictment charging him with making whisky. Evidence tending to show that the officers had found the whisky in the woods and only a short time before they went to the place where defendant lived, being duly objected to, was erroneously received. If it be suggested that this evidence...