Davis v. State

• Citation: 52 So. 939,168 Ala. 53
• Parties: DAVIS v. STATE.
• Decision Date: 09 June 1910
• Court: Supreme Court of Alabama

52 So. 939

168 Ala. 53

DAVIS v. STATE.

Supreme Court of Alabama

June 9, 1910

Appeal from Circuit Court, Elmore County; W. W. Pearson, Judge.

John Davis was convicted of murder in the first degree, and he appeals. Reversed and remanded.

It appears from the transcript that in drawing the venire for the case of State v. Walter Harrison the following were drawn as jurors and placed upon said venire: W. R. De Bardalaben O. H. Williams, J. R. Roy, L. T. Norris, S. M. Peevey, J. H Jones, and T. R. Collier. It further appears that H. P Wideman was drawn as a grand juror for the term of the court at which this venire was drawn, and that he served upon the grand jury, and that S. P. Storrs and G. E. Enslen were drawn and served as regular jurors for the week of this trial. Either these names were replaced in the jury box by the judge, or they escaped from the envelope in which they were placed, and became mingled with the other names in the jury box, and were drawn upon the special venire to try this defendant. The motion to quash contains these three reasons for the quashing of the venire served upon the defendant in this case.

J. A Holmes and B. K. McMorris, for appellant.

Alexander M. Garber, Atty. Gen., for the State.

EVANS J.

The motion by defendant to quash the venire should have been sustained. When the names had been drawn out of the jury box for the trial of another capital case, they could not be restored to the jury box by the presiding judge, or any one else, and then drawn for the trial of defendant without thereby making an illegal venire. It is the purpose of the law that the jury box shall be filled only by the jury commissioners at the time and in the manner prescribed by law, and whenever a name is drawn therefrom for forming any jury, regular or special, that name can never be restored to the box except by the jury commissioners when they refill the box. No one else has authority to do so. "It is from the names, properly, rightfully, legally in the jury box, the statute contemplates, so long as the box is not exhausted, the jurors forming the special venire shall be drawn." It is immaterial whether the names were intentionally put back in the jury box and mingled with those already in there, or whether, as the admitted facts show, they were put in an envelope and were shaken out with the other names, when the box was shaken. In either case they were improperly in the box and formed no part of the names therein from which a legal jury could be drawn. The court made an order for 50 names to be drawn from said jury box as special jurors for the trial of the case against the defendant, and, if several of the names thus wrongfully and illegally in the box were drawn and made to constitute a part of said 50 names so drawn, then defendant did not have a special venire drawn "from the names properly, rightfully, and legally in the jury box, and the venire was not such as the law provided he should have." Wilkins v. State, 112 Ala. 55, 21 So. 56; Cawley v. State, 133 Ala. 128, 32 So. 227; Jimmerson v. State, 133 Ala. 18, 32 So. 141. The motion, having been made before the trial was entered upon, was in due time, and the fact that defendant failed to object to said jurors at the time they were drawn, and his attention was called to the fact, can make no difference. He could make the motion at any time before the trial was entered upon. Mayfield's Dig. vol. 1, p. 533, §§ 317, 318, and cases there cited.

The court excused two of the jurors who were summoned for the week of the court that this case was set for trial, upon the ground that to serve would work a great injustice to them by closing up their business. The defendant was not present in court when this was done, nor did he consent thereto. This was made one of the grounds for motion to quash the venire. Chief Justice Stone, in the case of Fariss v. State, 85 Ala. 4, 4 So. 680, says, in speaking of the rule laid down in Parsons v. State, 22 Ala. 50, and of the criticisms of such a practice by the court as the matter...