Edwards v. State

• Decision Date: 02 December 1920
• Docket Number: 1 Div. 135
• Citation: Edwards v. State, 205 Ala. 160, 87 So. 179 (Ala. 1920)
• Parties: EDWARDS v. STATE.
• Court: Alabama Supreme Court

87 So. 179

205 Ala. 160

EDWARDS v. STATE.

1 Div. 135

Supreme Court of Alabama

December 2, 1920

Rehearing Denied Jan. 6, 1921

Appeal from Circuit Court, Mobile County; Saffold Berney, Judge.

Robert Edwards, alias "Sox," was indicted for and convicted of murder in the first degree, and he appealed.Affirmed.

Webb McAlpine & Grove, of Mobile, for appellant.

J.Q Smith, Atty. Gen., and Bart.B. Chamberlain, Sol., of Mobile for the State.

SOMERVILLE J.

The order of the court should have directed a venire "including those drawn on the regular juries for the week," and not "those drawn and summoned."In this particular the former requirement was changed by the act of September 29, 1919(Gen.Acts 1919, p. 1041).Walker v. State,85 So. 787.

However, no objection was made to the irregularity of the order, and it does not appear that the constitution of the special venire was affected thereby.Defendant had the number of veniremen specified in the order, and, for aught that appears, the 42 regular veniremen who were drawn and summoned included all who were drawn.

With respect to such irregularities, objection must be seasonably made, and prejudice must be made to appear, or they are not available for reversal of a judgment of conviction on appeal.Waldrop v. State,185 Ala. 20, 64 So. 80;Walker v. State,85 So. 787.

It is suggested that the special venire must be held illegal because the record does not specifically show, with respect to the six additional names drawn in court, that those persons were not within, or did not live within, five miles of the courthouse, or within the corporate limits of the city wherein the court was held, as prescribed by the Jury Law (Gen.Acts 1919, p 1041).Such a showing is not necessary.The record shows that the veniremen selected were duly qualified, and it will be presumed that they were qualified in this respect as well as in all others, in the absence of a proper showing to the contrary.

We are not to be understood as holding that the defendant can complain of irregularity merely because such additional veniremen are brought in from territory outside the limits prescribed.On the contrary, it would seem that that provision is directory only, to serve the convenience of the court by avoiding delays in executing the process and bringing in the required veniremen, and not mandatory in any sense.

While a verdict ought to be evidenced by a written return signed by the foreman, and such is the uniform practice, it was held a long time ago that the formality of a writing was not necessary to give validity and effect to a verdict.State v. Underwood,2 Ala. 744.But, even if a written verdict was necessary, it would be presumed that it was in writing; the contrary not appearing from the record.

Neither of the written statements made and signed respectively by defendant's associates, Charley and Dulaney, appear in the bill of exceptions, nor is there any recital...