Cole v. State

• Decision Date: 26 June 1923
• Docket Number: 4 Div. 860.
• Parties: COLE v. STATE.
• Court: Alabama Court of Appeals

97 So. 891

19 Ala.App. 360

COLE v. STATE.

4 Div. 860.

Court of Appeals of Alabama

June 26, 1923

Rehearing Denied July 14, 1923.

Appeal from Circuit Court, Dale County; J. S. Williams, Judge.

Lester Cole was convicted of rape, and appeals. Affirmed.

Certiorari denied by Supreme Court in Ex parte Cole, 97 So. 895.

H. L Martin, of Ozark, for appellant.

Harwell G. Davis, Atty. Gen., and Lamar Field Asst. Atty. Gen., for the State.

BRICKEN P.J.

The appellant was tried in the court below upon an indictment charging him with the offense of rape. The alleged injured party was a girl under the age of 15 years, while the defendant was a married man, and his home was situated in close proximity to where the offense is said to have occurred. It appears from the record in this case, according to the statement of the girl, that she was ravished first by one Hosea Riley, then by Lemmie Riley, and last by the appellant.

Many of the questions presented by the record in this case, in fact all of them, with the exceptions hereinafter noted, were presented to, and determined by, the Supreme Court in the case of Lemmie Riley v. State of Alabama, 209 Ala 505, 96 So. 599, and in that case all of the questions presented were decided adversely to contention of the appellant, and by the opinion in that case, now before us in manuscript, we are controlled. We therefore hold: (1) There was no error in sustaining the state's motion to strike the defendant's plea in abatement. (2) There was no error in overruling appellant's motion to continue the trial of his case. (3) There was no error in the rulings of the trial court with respect to the confessions, or admissions against interest, of the appellant as testified to in the court below by the various witnesses. (4) Special written charges 7, A and B, were properly refused. (5) There was no error in overruling the motion for a new trial.

Counsel for appellant seriously insists that the motion to quash the venire of jurors, impaneled and sworn to try the appellant, should have been granted, and the first insistence is based upon the failure of the trial court to make the venire of regular jurors drawn for the week the case was set for trial a part of the special venire of jurors drawn for the trial of the appellant's case in the court below. This insistence of the appellant is decided adversely to the appellant in the case of Lemmie Riley v. State, supra.

It is next insisted by the appellant that inasmuch as the order of the court provided that the venire of jurors for the trial of appellant's case should be 75 in number, and inasmuch as the venire of jurors, from which the jury that tried the case in the court below was stricken, consisted of 55 in number, some of the 75 having been excused by the court on legal grounds, and 12 being out on the Lemmie Riley Case, therefore the appellant had only a venire of 55 jurors, instead of 75, as provided by the order of the court. The case of Brilliant Coal Co. v. Barton, 203 Ala. 39, 81 So. 828,

is cited and is insisted upon as authority for the contention of appellant that said venire of jurors should have been quashed. This court cannot assent to appellant's insistence for the following reasons:

1. The act approved September 29, 1919 (General Acts Alabama 1919, p. 1039), is amendatory to the jury law of 1909 (General and Local Act Alabama Special Session 1909, p. 305). The act of 1919 amends only sections 18 and 32 of the act of 1909. Section 18 of the act of 1919 is in all respects identical with section 18 of the act of 1909, with the exception that the following provision of section 18 of the act of 1909 is not incorporated in the act of 1919, vis.:

"Provided that no name shall be drawn for any week after the first week of the term more than twenty days before the first day that such juror is to serve."

The provision eliminated from section 18 of the act of 1909 in the adoption of section 18 of the act of 1919 in no wise affects or pertains to any question raised in the present motion to quash the venire of jurors.

Section 32 of the act of 1919 is in all respects identical with section 32 of the act of 1909 except that section 32 of the act of 1909 provides that, if in any capital case the number of competent jurors should be less than 20, then before any of said jurors could be stricken from the list the court should draw and have summoned a sufficient number to increase the number of jurors to at least 30, while section 32 of the act of 1919 places the minimum number of competent jurors at 30, instead of 20, as provided in the act of 1909.

Section 32 of the act of 1909 also provided that, if for any cause the regular number of jurors competent to try a defendant was reduced to below 24, then the court should cause twice the number of the deficiency to be drawn and summoned, while section 32 of the act of 1919 provides that if the number of jurors competent to try a defendant is reduced below 24 in a noncapital felony and below 18 in a misdemeanor then the court must cause twice the number of the deficiency to be drawn and summoned.

It will thus be seen that in so far as the question now being considered is concerned the act of 1919 is identical with the act of 1909.

The act of 1909 has been several times construed by the Supreme Court with respect to the very question now urged in behalf of the appellant. It is a familiar rule that in the construction of the provision of a statute the judicial construction previously placed upon the pertinent provisions of the statute is incorporated in the subsequent statute, because the reordaining, or the substantial reproduction, of a statutory provision carries with its adoption the settled construction which the judiciary has placed upon it. Ex parte Pepper, 185 Ala. 284, 294, 64 So. 112, and cases cited. Both the act of 1919 and 1909 contain the following provision:

"If the sheriff fails to summon any of the jurors drawn, or any juror summoned fail or refuse to attend the trial, or there is any mistake in the name of any juror drawn or summoned, none nor all of these grounds shall be sufficient to quash the venire or continue the cause; provided further, that whenever the judge of any court trying capital felonies shall deem it proper to set two or more capital cases for trial on the same day, said judge may draw and have summoned one jury or one venire facias or petit jurors for the trial of all such cases so set for trial on the same day." Section 32.

In the case of Tennison v. State, 188 Ala. 90, 66 So. 112, section 32 of the Jury Law of 1909 was before the Supreme Court for construction, and the insistence in that case was:

"Where the court by its order designates a certain number of persons as constituting the venire to try a capital case, and the record shows that less than that number of persons were furnished as such venire, it results that the defendant is deprived of the venire fixed by the order of the court and contemplated by law, and is such error as will reverse."

In the minority opinion of the court Mr. Justice Mayfield very clearly points out that a defendant in all probability will never have the full number of venire of jurors fixed by the order of the court from which to select the 12 who are to try his case, and her says:

"Some may not be competent; some may be sick, or be engaged in the trial of another case, or be absent upon other unavoidable contingencies."

And it was his opinion that the absence of jurors, because of these contingencies, would constitute no ground for quashing the venire or delaying the trial to obtain the full number. In the majority opinion of the court it was directly stated that the grounds of motion in that case were not sufficient to authorize the sustaining of the motion to quash the venire under the language of the statute. At best the grounds for the motion now insisted upon could only have constituted a just foundation of objection of going to trial and of a motion for a continuance. Carmack v. State, 191 Ala 1, 67 So. 989; ...