Carmack v. State
| Decision Date | 21 January 1915 |
| Docket Number | 562 |
| Citation | 67 So. 989,191 Ala. 1 |
| Parties | CARMACK v. STATE. |
| Court | Alabama Supreme Court |
Appeal from Law and Equity Court, Lee County; Lum Duke, Judge.
Homer Carmack was convicted of murder and he appeals. Reversed and remanded.
Albert E. Barnett, of Opelika, and Glenn & De Graffenried, of Seale, for appellant.
R.C. Brickell, Atty. Gen., and W.L. Martin, Asst. Atty. Gen., for the State.
It appears that the special venire to try this case was fixed at 75, to be composed of the regular jurors for the week, together with 18 special jurors drawn by the court. It also appears that the trial court, upon the organization of the regular juries for the week, excused 26 jurors who were upon the venire to try this case, and made no order requiring them to be resummoned for the trial of this defendant, as provided by the act of 1909 (page 317). Waldrop v. State, 64 So. 80. It thus appears that by excusing these 26 jurors, and in not ordering them summoned to try this case, the special venire was in effect reduced to 49--less than the minimum number required by law. This question was gone over in the case of Tennison v. State, 66 So. 112, but a majority of the court held that the action of the court was not questioned by a proper and timely objection. Here, however, the record shows that the defendant did make a proper and sensonable objection to being placed upon trial with the venire in this condition; and we think that the trial court erred in so placing him upon trial.
There is no merit in the objections to the evidence as disclosed by what appears to be an incomplete bill of exceptions. The judgment of the law and equity court is reversed, and the cause is remanded.
Reversed and remanded. All the Justices concur, except DE GRAFFENRIED, J., not sitting.
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...made a predicate for reversible error. Edgar v. State, 183 Ala. 36, 62 So. 800; Irwin v. State, 220 Ala. 160, 124 So. 410; Carmack v. State, 191 Ala. 1, 67 So. 989; v. State, 201 Ala. 387, 78 So. 449; Zininam v. State, 186 Ala. 9, 65 So. 56; Spooney v. State, 217 Ala. 219, 115 So. 308; Tayl......
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...summoned as regular jurors for the week in which the case is to be tried. These rights are recognized by the adjudged cases. Carmack v. State, 191 Ala. 1, 67 So. 989; v. State, 14 Ala.App. 63, 71 So. 79; Waldrop v. State, 185 Ala. 23, 64 So. 80; Tennison v. State, 188 Ala. 90, 66 So. 112; H......
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