Costello v. State

• Decision Date: 04 April 1912
• Citation: 176 Ala. 1,58 So. 202
• Parties: COSTELLO v. STATE.
• Court: Alabama Supreme Court

58 So. 202

176 Ala. 1

COSTELLO v. STATE.

Supreme Court of Alabama

April 4, 1912

Rehearing Denied April 25, 1912.

Appeal from Circuit Court, Dale County; A. H. Alston, Judge.

Ed Costello was convicted of homicide, and he appeals. Reversed and remanded.

H. L Martin, of Ozark, for appellant.

R. C Brickell, Atty. Gen., and W. L. Martin, Asst. Atty. Gen., for the State.

DOWDELL C.J.

It appears that on the day of the arraignment of the defendant which was on Monday of the second week of the term, the court made an order for 25 special jurors to be drawn for the trial of the defendant, which, together with the regular jurors "drawn and summoned" for the week, should constitute the special venire from which to select a jury. The order of the court did not definitely state the number of jurors to constitute the special venire, but was as follows: "* * * It is ordered by the court that the sheriff summons twenty-five persons in addition to those drawn and summoned as the regular jurors for the week set for the trial of the case. The presiding judge then, in open court, proceeded to draw from the jury box of said county the number of names required, with the regular jurors drawn and summoned for the week, to make the whole number of jurors not less than fifty nor more than one hundred."

So it appears that 25 special jurors were ordered and drawn pursuant to law as constituting a part of the special venire. It also appears from the record that the number of regular jurors drawn and summoned for the week was 30. It also appears that on Monday, the day that the order was made for the special venire, the court, in organizing the regular juries for the week, excused 4 of the regular jurors drawn and summoned for the week, thus reducing the number of regular jurors drawn and summoned from 30 to 26; the latter being the number of regular jurors organized and impaneled for the week. It appears from the record that the 26 jurors impaneled for the week and the 25 special jurors drawn from the box by the presiding judge constituted the special venire from which the jury was selected to try the defendant. While the order of the court was not pursuant to provisions of the statute as to what should constitute the special venire, still the defendant got all that he was entitled to under the statute. Cr. Code, § 7265. We are satisfied that no injury resulted to the defendant from the irregular order of the court in respect to the special jury. Cr. Code, § 6264.

There was no eyewitness to the tragedy that testified in the case. The deceased was found in her house, about 12 o'clock in the day lying dead upon the floor, her head near her dresser, and also near a wood box. When found, her body was yet warm. There was a gash in her right temple about 2 to 2 1/2 inches long, as if made by a blunt instrument. There was also a bruise over her left eye. As to how the deceased came to her death, the evidence was wholly circumstantial. So, too, the evidence tending to connect the defendant with the tragedy was wholly circumstantial.

The theory of the defense was that the death of the deceased was accidental; that the wound on the right temple, which caused her death, resulted from her having fallen against the dresser, which had a sharp edge, or upon the wood box.

Dr Godwin, a witness for the defendant, testified that he was called the day that Mrs. McGill was found dead; that he examined her,...