Crump v. State
| Decision Date | 01 February 1938 |
| Docket Number | 6 Div. 263 |
| Citation | 28 Ala.App. 103,179 So. 392 |
| Parties | CRUMP v. STATE. |
| Court | Alabama Court of Appeals |
Rehearing Feb. 22, 1938
Appeal from Circuit Court, Walker County; R.L. Blanton, Judge.
Hollis Crump was convicted of murder in the second degree, and he appeals.
Reversed and remanded.
Pennington & Tweedy, of Jasper, for appellant.
A.A Carmichael, Atty. Gen., and Chas. L. Rowe, Asst. Atty. Gen for the State.
The indictment charged the defendant (appellant) with the offense of murder in the first degree.
The court ordered that Thursday, the 3d day of June, 1937, be fixed as the time for the trial of the case; and further ordered that the venire from which the jury to try the case shall be selected shall consist of the names of 80 jurors and it appearing to the court that 57 jurors have been drawn on the regular juries for the week set for the trial of this case, and ordered that those jurors, together with 23 others drawn in open court and in the presence of the defendant by the presiding judge from the jury box of Walker county, shall constitute such venire. The said order provides:
The foregoing order discloses a sufficient compliance with the statute.
On June 3, 1937, the date set for the trial, both sides announced ready, but before entering upon the trial the defendant objected to going to trial and moved the court to quash the venire on the grounds: (1) Because there were served upon defendant a list of 80 names, and there had been excused, and otherwise eliminated, from the list, 40 names, which leaves only 40 names from which this jury to try the defendant has to be selected. (2) Because a large number of these jurors were excused by the court without any agreement or knowledge on the part of the defendant. There were other grounds upon which were rested said motion to quash and objection to going to trial, but these may not be considered or discussed. Evidence was had upon the motion, and the hearing of these matters as transcribed in the bill of exceptions consumed some 25 or 30 pages of the transcript. The evidence on the motion disclosed, without dispute, that the court prior to the date set for the trial did excuse a large number of the jurors, and that none of said excused jurors was present in court on June 3, 1937, the date set for the trial of this case. At the conclusion of taking the testimony above referred to, there appears in the bill of exceptions the following: The motion was overruled, to which action the defendant duly and legally reserved an exception.
The action of the court in excusing these numerous (named) veniremen prior to the date set for the trial of this case was error, necessitating a reversal of the judgment of conviction from which this appeal was taken. The following authorities are conclusive as to this proposition. Stinson v. State, 223 Ala. 327, 135 So. 571; Jimmie Lee Smallwood v. State, Ala.Sup., 179 So. 217.
In the Smallwood Case, supra, it appeared that in calling the names of the jurors summoned for the trial of said cause, the name of one juror, Raymond Webb, was called but said Webb did not answer, whereupon the court stated that he had excused said Raymond Webb on the organization of the court the day before. Thereupon the defendant objected to going to trial without the presence of said juror. The court overruled said objection, stating: Thereupon the defendant duly and legally reserved an exception. For this erroneous action of the court the Supreme Court reversed and remanded the case. In this connection, among other things, the court said:
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McWhorter v. State
...had the right to be present at that stage of the proceedings. McLemore v. State, 34 Ala. App. 34, 36 So.2d 452 (1948); Crump v. State, 28 Ala.App. 103, 179 So. 392 (1938). Code 1940, Tit. 30, §§ 5,63, 64 (repealed). The current statute, however, specifically states that the appellant does n......
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Thigpen v. State
...that the defendant must be present and given an opportunity to participate in the selection of the jury for his trial. Crump v. State, 28 Ala.App. 103, 179 So. 392. This requirement has been held mandatory, and its denial to compel a reversal. Lassiter v. State, 36 Ala.App. 695, 63 So.2d Ho......
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... ... We ... think a failure is reversible error when the situation is ... properly brought to the attention of the trial court on the ... day of trial by a proper motion and an exception.' ... A like ... holding is announced in Harden v. State, 26 Ala.App ... 94, 155 So. 719; Crump v. State, 28 Ala.App. 103, ... 179 So. 392; Dodd v. State, 30 Ala.App. 96, 1 So.2d ... 670, certiorari denied 241 Ala. 152, 1 So.2d 671 ... The ... Assistant Attorney General does not question the fact that ... the instant inquiry presents an unsurmountable authoritative ... ...
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Windsor v. State
...had the right to be present at that stage of the proceedings. McLemore v. State, 34 Ala.App. 34, 36 So.2d 452 (1948); Crump v. State, 28 Ala.App. 103, 179 So. 392 (1938). Code 1940, Tit. 30, §§ 5, 63, 64 (repealed). The current statute, however, specifically states that the appellant does n......