Coates v. State

• Decision Date: 15 June 1911
• Citation: Coates v. State, 1 Ala.App. 35, 56 So. 6 (Ala. App. 1911)
• Parties: COATES v. STATE.
• Court: Alabama Court of Appeals

56 So. 6

1 Ala.App. 35

COATES v. STATE.

Court of Appeals of Alabama

June 15, 1911

Appeal from City Court of Gadsden; James A. Bilbro, Judge.

Cleveland Coates was convicted of homicide, and he appeals. Affirmed.

Alto V Lee, Jr., for appellant.

R. C. Brickell, Atty. Gen., for the State.

WALKER P.J.

As to the proceedings to be taken in preparation for the trial of a person indicted for a capital felony, there is no suggestion that in this case there was a failure to comply with any requirement of the statute (Acts Sp. Sess. 1909, pp. 305 319) up to and including the action of the court in causing an order to be issued to the sheriff to summon the jurors specially drawn and forthwith to serve upon the defendant a list of the names of all the jurors summoned for the week in which the trial was set, and those specially drawn, together with a copy of the indictment.

The action of the sheriff under that order was by motion brought to the attention of the court as a ground for quashing the venire of jurors for the trial of the case. By mistake the sheriff first served on the defendant, as the list of jurors for the trial of his case, a list of the special jurors drawn and a list of the regular jurors drawn and summoned for the week of the court next after the week in which the trial was set, together with a copy of the indictment. On discovering the mistake, the sheriff in due time served upon the defendant the proper lists of names, together with a copy of the indictment. It was apparent that the first attempted service did not constitute a compliance with the order of the court on the subject, made while the defendant was personally present, as the paper showed on its face that the list of regular jurors set out was of those summoned for a week of the court other than the week in which the trial was set. When the second and proper service was made, it must have been plain to the defendant that the lists then served set out the names from which the jury in the case was to be selected. He could not in reason have supposed that the previously served list of regular jurors drawn and summoned for another week of the court was to constitute a part of the list of names from which a jury for the trial of the case was to be selected. He could not have been misled by the obvious mistake disclosed on the face of the paper first served upon him. The sheriff's first abortive attempt to comply with the order of the court constituted no ground for quashing the venire subsequently served on the defendant in strict compliance with the order of the court on the subject.

The fact that the sheriff's return showed that one of the persons whose name as a special juror was drawn was not found did not constitute a ground for quashing the venire. The statute contains no requirement that all the persons whose names are so drawn must be served. It is complied with in this regard if the required order to summon is caused to be issued to the sheriff. It is not made a prerequisite to the validity of the venire that service be had upon a special juror who could not be found. Other facts set out in the motion as grounds for quashing the venire were not sustained by proof. The court was not in error in overruling that motion.

The first and third charges requested by the defendant were properly refused. The defendant was not entitled to have the court direct the attention of the jury to a particular phase of the case and to instruct them to weigh or consider the evidence on that subject.

Fountain v. State, 98 Ala. 40, 13 So. 492.

Charge 2 requested by the defendant was properly refused because of its failure to hypothesize the defendant's freedom from fault in bringing on the difficulty. Kirby v. State, 151 Ala. 66, 44 So. 38; Smith v. State, 142 Ala. 14 39 So. 329; Harrison v. State, 144 Ala. 20, 40 So. 568; Gilmore v. State, 126 Ala. 20, 28 So. 595. The giving of that charge would have made it the duty of the jury to acquit the defendant though they found from the evidence that he was at fault in provoking the deceased to...