Carson v. Pointer

• Decision Date: 30 January 1914
• Docket Number: 247
• Citation: 66 So. 910,11 Ala.App. 462
• Parties: CARSON v. POINTER.
• Court: Alabama Court of Appeals

66 So. 910

11 Ala.App. 462

CARSON v. POINTER.

No. 247

Court of Appeals of Alabama

January 30, 1914

Rehearing Denied Nov. 10, 1914

Appeal from Circuit Court, Calhoun County; Hugh D. Merrill, Judge.

Action by T.L. Carson against W.P. Pointer. From judgment for defendant and order denying new trial, plaintiff appeals. Affirmed.

P.F Wharton and T.C. Sensabaugh, both of Anniston, for appellant.

S.W Tate, of Anniston, for appellee.

THOMAS, J.

After verdict and judgment against him, the appellant, plaintiff below, made a motion for a new trial, assigning as a ground therefor, among others not necessary to notice because not here insisted upon, that Moses G. Scott, one of the jurors composing the jury that tried the case, was not a competent juror on account of the fact, as alleged; that he was not, at the time of the trial and of his service as a juror therein a resident citizen of the county in which the trial was had but at such time, and ever since and continuously for 20 years or more next preceding, was, still is, and had been a bona fide resident of the adjoining county of Talladega; and that the fact of his nonresidence in the county of the trial was not known to either the movent or his counsel at the time he was accepted by them as a juror, and that such fact did not become known to either of them until after the return of the verdict and the rendition of the judgment. All of these facts, as set forth in the motion, were proved, without conflict or dispute, by evidence both competent and satisfactory; but the court declined to set aside the verdict and award the new trial as prayed, its action in which particular is the only alleged error that is urged.

We are of opinion that the action of the court was proper. It cannot be doubted that the fact of the incompetency of the juror on account of his nonresidence in the county of the trial furnished good ground for a challenge for cause.

The general rule, even in a felony case, is that objection to a juror on account of incompetency comes too late after verdict, but, to be available, must be interposed before the juror has been sworn in the case. Andrews v. State, 152 Ala. 21, 44 So. 696; Henry v. State, 77 Ala. 75; Roberts v. State, 68 Ala. 523; Rash v State, 61 Ala. 89; Smith v. State, 55 Ala. 1; Stalls v. State, 28 Ala. 25; State v. Morea, 2 Ala. 275. It is conceded that this is the general rule, especially applicable where the complaining party knew of the disqualification in time to have interposed the challenge; but the insistence is made that a lack of such knowledge and lack of a knowledge of any fact or facts that would tend to put the party on inquiry at such time is sufficient to authorize an exception to the general rule and to render the disqualification available on a motion for new trial. Certainly, should this be true, it is urged, where, as here, the juror on his voir dire examination by the court on its organization, which examination the statute makes mandatory in all cases (Code, §§ 4633, 7270), stated that he was a citizen of the county of the trial.

The exact or precise question has never been passed upon in this jurisdiction, but in many cases outside of this state it has been expressly decided that the right to attack a verdict for the disqualification of a juror does not exist even when the moving party was previously ignorant of such disqualification; it being considered that it is the duty of a party to discover any such...