Clarke v. State

• Decision Date: 20 June 1889
• Citation: 6 So. 368,87 Ala. 71
• Parties: CLARKE v. STATE.
• Court: Alabama Supreme Court

6 So. 368

87 Ala. 71

CLARKE v. STATE.

Supreme Court of Alabama

June 20, 1889

Appeal from criminal court, Jefferson county; S.E. GREENE, Judge.

The defendant, Ralph Clarke, was indicted for the murder of James Leatherwood, and was convicted, and sentenced to the penitentiary for life. The material facts attending the killing are stated in the former report of the case, (78 Ala 474,) and a statement of them here is unnecessary. As the bill of exceptions recites, a special venire was drawn, the defendant demanding that it should be composed of 50 jurors, but the court permitted only 30 to be drawn, to which defendant excepted. When the case came to trial the court proceeded to impanel a jury. Several jurors were called, five in all, who were returned, "not found," to which the defendant excepted, and exceptions were overruled. Defendant then made a motion to the effect that he was entitled, as a matter of law, to 20 challenges which motion the court overruled, and the defendant excepted. Defendant testified that he heard of Leatherwood's death but did not know him, and had never seen him; denied the killing of Leatherwood; and said that about that time he was a constable in Birmingham. In his argument to the jury the assistant solicitor commented at length on the defendant's taking the stand as a witness, thus having an opportunity of explaining his whereabouts on the night of Leatherwood's death, and his failure to do so. Defendant's counsel objected to this manner of presenting the case, and contended that while the accused was a witness he was also the defendant, and any failure on his part to testify could not be adverted to by the state as a condemning circumstance. The court overruled this objection, and the defendant duly excepted. On these several grounds defendant appeals.

W. L. Martin, Atty. Gen., for the State.

CLOPTON J.

When the names of persons to be summoned as special jurors for the trial were being drawn, defendant demanded that 50 names should be drawn, but the court permitted only 30. The jury law, which was in force in Jefferson county at that time, provides that, when any capital case stands for trial, the court shall cause the jury-box to be brought into the court-room, and the presiding judge shall draw therefrom not less than 25 nor more than 50 names, to constitute a part of the venire, from which the jury to try the case shall be selected. Acts 1886-87, p. 151. The statute gives the accused a right to have the minimum number drawn but not the maximum, at his election or on his demand. How many names between the prescribed numbers shall be drawn is intrusted to the discretion of the court, having reference to the circumstances, and the exercise of the discretion is not reviewable.

A motion relating to the number of challenges without cause to which the accused is of right entitled, preliminary to the drawing of the names on the venire for the purpose of selecting a jury, is not the proper mode to raise the question. Such declaration, at such time, would not be the adjudication of a practical question which arose during the trial, but the expression of the then opinion of the presiding judge, notwithstanding which the court may have accorded defendant his full right in respect to challenges when and so far as he sought to exercise it during the selection of the jury. In such case he would have no cause to complain. The record does not show that the court decided, at any stage of the trial, the number of peremptory challenges to which ...