Daniel v. State

• Decision Date: 10 February 1916
• Docket Number: 6 Div. 932
• Citation: 14 Ala.App. 63,71 So. 79
• Parties: DANIEL v. STATE.
• Court: Alabama Court of Appeals

71 So. 79

14 Ala.App. 63

DANIEL v. STATE.

6 Div. 932

Court of Appeals of Alabama

February 10, 1916

Rehearing Denied March 4, 1916

Appeal from Criminal Court, Jefferson County; W.E. Fort, Judge.

W.E Daniel was convicted of manslaughter in the first degree, and he appeals. Affirmed.

The killing is alleged to have been done by stabbing or cutting with a knife, and the person killed was one William Gannaway. The tendency of the evidence sufficiently appears.

The following charges were refused to defendant:

(22) The presumption of innocence surrounds defendant and attends him at every step in the case, and is a shield to him against every inference of guilt until it is destroyed by evidence so strong that you are convinced to a moral certainty, and beyond all reasonable doubt, that defendant is not without guilt.

(18) No amount of proof of guilt, however made, will satisfy the demands of the law, if it fails to convince the minds of all the jury beyond a reasonable doubt that defendant is necessarily guilty.

(5) I charge you that the law allows a defendant who is without fault in bringing on the difficulty, when attacked by a person of known violent, dangerous, bloodthirsty, and turbulent character, to act more quickly in defense of his life or limb than when attacked by a person of good character.

(1) A person has a right to remain in his place of business and to be unmolested in the management of his business in his own store, and there is no duty on him to retreat from it on the entering of a hostile person.

(3) I charge you that the law does not require a defendant to retreat when attacked in his own storehouse or place of business.

Allen Bell & Sadler, of Birmingham, for appellant.

W.L Martin, Atty. Gen., and Harwell G. Davis, Asst. Atty. Gen for the State.

BROWN, J.

The order fixing the day for defendant's trial was made on January 30, 1915, and fixed the 8th day of February, the first day of the sixth week of the January term of the court as the day for trial. On the same day, the court entered an order fixing the number of jurors constituting the venire for defendant's trial at 97, to be comprised of 37 jurors drawn and summoned for the sixth week of the term, and the 60 special jurors then drawn and ordered to be summoned. The return of the sheriff shows that a copy of the venire as thus constituted, together with a copy of the indictment, was served on the defendant in person on the 3d day of February, 1915, which was five days prior to the day set for the trial. Motion was made to quash the venire on the ground that it does not appear from the record of the court that the court "on the first day of the term, or as soon as practicable thereafter," made an order commanding the sheriff to summon not less than 50 nor more than 100 persons as jurors for the defendant's trial; that 100 persons' names have been drawn for the week, and only 97 of these names appear on the list served on the defendant; that the return of the sheriff on the regular venire for the week was premature and shows on its face a lack of diligence on the part of the sheriff in serving the regular jurors; that the record shows that the venire was not served "forthwith," as required by the statute.

The purpose of the statute in requiring the court, at the earliest "practicable" day, to make an order for the summoning of the jury for defendant's trial, and requiring service of a list thereof on the defendant, is to afford the defendant ample time to inspect the list and inquire into the qualifications of persons constituting the venire for his trial. Previous to the enactment of the present jury law, the statute required service one entire day before the day set for the trial. In this case, the defendant was served five days before the day of his trial, affording defendant and his counsel ample time to inquire as to the qualifications of the jurors, and was therefore a substantial compliance with the statute.

The statute provides--and the order of the court was in accord therewith--that the venire for the trial of a defendant charged with a capital felony shall be constituted of the jurors drawn and summoned for the week of the term in which the case is to be tried and those specially drawn by the court. Acts Special Session 1909, p. 318, § 32; Harris v. State, 172 Ala. 413, 55 So. 609. Therefore the accused had no interest in those persons whose names appeared on the regular venire and who were not summoned; they in no way affected the defendant's venire and the court had no authority under the law to make them a constituent element thereof. So far as the regular jurors for the week were concerned, the ipse dixit of the statute fixed their status in relation to the defendant's trial. It was only those drawn and summoned that could be used. If it be conceded that the return of the sheriff on the regular venire was premature, it affords the defendant no ground to complain, as he was given his full quota of names required by the order of the court. Moreover, the venire, on its face, was made returnable on the 30th day of January, 1915, and the return was made on that date, and was not, in fact, premature. The return day of the venire was so fixed, no doubt, to meet the...