Dodd v. State

• Decision Date: 17 April 1941
• Docket Number: 7 Div. 654
• Citation: 241 Ala. 152,1 So.2d 671
• Parties: DODD v. STATE
• Court: Alabama Supreme Court

1 So.2d 671

241 Ala. 152

DODD v. STATE

7 Div. 654

Supreme Court of Alabama

April 17, 1941

Thos. S. Lawson, Atty. Gen., and Jas. A. Hare Asst. Atty. Gen., for the petition.

McCord & Miller, of Gadsden, and Scruggs & Creel, of Guntersville, opposed.

THOMAS Justice.

The opinion of the Court of Appeals reversed this case on the ground that the trial court erred in excusing a juror at a time when neither the defendant(appellant) nor his counsel was present, even though the judge of the trial court had endorsed on the summons of the absent special juror the following: "11-27-39 This juror is excused on account of the exemption given him under Section 1600(86) Code of Alabama, 1923."(sic.)

In view of the above, petitioner requests that this petition for a writ of certiorari be granted and that this Court direct the Court of Appeals to affirm the judgment of the trial court.

The arraignment was on the 17th day of November, 1939, the trial was set for December 6, 1939, and we judicially know that the endorsement of the judge on the juror's summons (11-27-39) was not on the date of his arraignment or on the date of defendant's trial.

The excused juror, one W. Owen Leach, a member of the National Guard, was exempted by law (Section 11, Military Code, 1936 Gen.Act1936, Ex.Sess. p. 108, as amended by Act No. 509 General Acts 1939, p. 774), which in pertinent part is as follows: "Section 11.Exemption From Poll Tax, Street Tax And Jury Duty: Owing to liability to call for military duty during their term of service, every officer and enlisted man of the National Guard and Naval Militia of Alabama shall be exempt from poll tax, road duty, street tax and jury duty during his active membership, any local or special laws to the contrary notwithstanding * * *.The commanding officer of any company, troop, battery, or any similar organization, shall furnish each member of his command applying for same such certificate of membership as may be prescribed by the Adjutant General, signed by such commanding officer, which certificate shall be accepted by any court as proof of exemption as provided by this law."

The operation of this proof of exemption is predicated upon "liability to call for military duty during their term of service, every officer and enlisted man of the National Guard and Naval Militia of Alabama."

The state insists that there can be no doubt that when the certificate of membership is presented to the court, the court is under a mandatory duty to excuse the holder from jury duty.The law does not lodge in the trial court the discretionary powers the court has in excusing jurors who are exempted ordinarily from jury duty.

By the terms of Section 8605, Code of 1923, as amended by the General Acts of 1936, Extra Session, p. 33, the classes of persons who are declared exempt from jury duty are set forth, but such persons may serve on the jury with their own consent.By the terms of the amendment of Section 11 of the Military Code, General Acts 1939, p. 774, § 4 members of the National Guard are declared exempt during active membership therein and a certificate of membership signed by the...