Edgar v. State
| Citation | 183 Ala. 36,62 So. 800 |
| Parties | EDGAR v. STATE. |
| Decision Date | 12 June 1913 |
| Court | Supreme Court of Alabama |
Appeal from Circuit Court, Franklin County; C.P. Almon, Judge.
Jess J Edgar was convicted of murder in the second degree, and appeals. Reversed and remanded.
E.B Almon, of Sheffield, and G.O. Chenault, of Russellville, for appellant.
R.C Brickell, Atty. Gen., and W.L. Martin, Asst. Atty. Gen., for the State.
DE GRAFFENRIED, J.
In this case there was an indictment for murder. The defendant was convicted of murder in the second degree, and appeals.
1. There was a motion by the defendant to quash the venire upon the ground that a correct copy of the venire of jurors drawn and summoned for the week, "with a copy of the special venire of jurors drawn and ordered summoned for the trial of this cause, was not served upon the defendant as required by law and the orders of this court." The particular objection was that the names of Will J. Bruton, and James C Bowen were drawn, summoned, and impaneled as jurors for the week in which the defendant's case was set for trial that they were then in attendance upon the court, but that their names had been omitted from the copy of the venire which had been served upon the defendant, and did not appear upon such lists. The truth was that the clerk, in making out the copy to be served, and which was served upon the defendant, by a clerical misprision wrote the name Will J. Bruton, Will J. Bryton, and the name James C. Bowen, James C. Brown. This was a mere clerical error, and the court properly overruled the defendant's motion to quash the venire. Godau v. State, 60 So. 908.
2. It appears that the court had excused the juror Bruton for good cause, and the court cannot be put in error for failing to have his name placed upon the lists from which the defendant's jury was drawn.
3. The trial court, however proceeded upon the theory that because of the mistake in the name of James C. Bowen, the defendant was not entitled to have the name of that juror placed upon the lists. It is argued on behalf of the state that we are, from this record, authorized to indulge the presumption that the juror James C. Bowen had also been excused by the court for good and sufficient cause. There is nothing in the record indicating that this juror had been excused. On the contrary, the record shows that the defendant objected to being forced to select a jury from the lists because of the absence of the name of said James C. Bowen from said lists, and that he reserved an exception to the action of the trial court in requiring him to select his jury from a list upon which that name did not appear. There is no reason why an appellate court should shut its eyes to the truth, or that it should say, in order that it may uphold the judgment of a trial court, that a certain thing might have existed when every reasonable intendment of the record which it has before it clearly indicates that the thing did not exist. Every record is entitled to an honest consideration, and there should be no dodging of an issue when the issue is fairly presented. We think that this record shows that the juror James C. Bowen was not excused by the court, that he was present when the defendant's trial was entered upon, and that his name was not placed upon the defendant's jury lists because the trial court was of the opinion that the error of the clerk, to which we have above adverted, had rendered it improper for his name to be placed upon the lists.
4....
To continue reading
Request your trial
-
Doss v. State
...... judge to substitute a different procedure. So this court,. following the only course open to it, has held that part of. the statute mandatory which requires that a list of the. names of all jurors summoned for the trial shall be served. upon the defendant. Edgar v. State, 183 Ala. 36,. 62 So. 800.". . . . Section. 7572 of the Code 1907 appears to have been codified twice in. the Code of 1923, once as section 5202 and again as section. 8630. Section 29 of the 1909 Jury Law is brought forward as. section 8636 of the Code 1923. . . ......
-
Stinson v. State
...... defendant's trial, in defendant's absence, yet, in. the absence of an objection to proceeding with the selection. of the jury because of the absence of the jurors excused,. this action of the court cannot be made a predicate for. reversible error. Edgar v. State, 183 Ala. 36, 62. So. 800; Irwin v. State, 220 Ala. 160, 124 So. 410;. Carmack v. State, 191 Ala. 1, 67 So. 989; White. v. State, 201 Ala. 387, 78 So. 449; Zininam v. State, 186 Ala. 9, 65 So. 56; Spooney v. State,. 217 Ala. 219, 115 So. 308; Taylor v. State (Ala. Sup.) 131 So. 236. ......
-
Cain v. State
...38, 55 So. 118; Bailey v. State, 172 Ala. 418, 55 So. 601; Andrews v. State, 174 Ala. 11, 56 So. 998, Ann.Cas. 1914B, 760; Edgar v. State, 183 Ala. 36, 62 So. 800; v. State, 186 Ala. 12, 65 So. 56. While the statute provides that: "The jurors selected, drawn, summoned and impaneled under th......
-
Douglas v. State
...jury because of the absence of the jurors excused, this action of the court cannot be made a predicate for reversible error. Edgar v. State, 183 Ala. 36, 62 So. 800; Irwin v. State, 220 Ala. 160, 124 So. 410; Carmack v. State, 191 Ala. 1, 67 So. 989; White v. State, 201 Ala. 387, 78 So. 449......