Gerald v. State
| Decision Date | 11 January 1901 |
| Citation | 128 Ala. 6,29 So. 614 |
| Parties | GERALD v. STATE. |
| Court | Alabama Supreme Court |
Appeal from city court of Montgomery; A. D. Sayre, Judge.
Adolphus S. Gerald, Jr., was tried under an indictment charging that he "unlawfully and with malice aforethought killed D. A Hyatt by shooting him with a pistol," was convicted of manslaughter in the first degree and sentenced to the penitentiary for 10 years, and he appeals. Affirmed.
On July 17, 1900, the defendant being present, the cause was set for trial on August 2, 1900. There was an order made for the drawing of a special venire for the trial of the case. On August 2d, the cause was continued until August 3d. On August 3d, the minute entry was as follows: "This day came the state by its solicitor, and came also the defendant in his own proper person and by attorney, and the trial of this cause having been set for the 2d day of August, 1900, and continued to this day, and the defendant not being ready for trial, it is ordered by the court that the trial of this case be and it is hereby reset for August 13, 1900, and it is further ordered by the court that the special jurors drawn at this term of the court for the trial of this cause and the regular jurors summoned for the week of the court in which this cause was originally set for trial at this term shall appear in this court on said 13th day of August, 1900, for the trial of this cause; to which action of the court the defendant duly excepted."
When the cause was called for trial on August 13, 1900, the defendant showed to the court that members of the venire which had been summoned to try his case had previously thereto been summoned on other murder cases and that they had served as jurors upon said other murder cases and had found the defendants guilty. The bill of exceptions then recites that "thereupon the defendant challenged the entire panel and objected to being tried by said venire, on the ground that the same had returned verdicts of guilty in cases similar to his." The court refused to allow such challenge and to this ruling the defendant duly excepted.
During the organization of the jury for the trial, there were drawn the names of several persons summoned to serve as jurors, who had served upon the other juries in the trial of other and distinct murder cases during the week for which the defendant's case was set, and had returned verdicts of guilty. The defendant separately challenged for cause each of such persons, as their names were drawn, but the court refused to allow such challenges and the defendant separately excepted.
It was shown that there was no connection between such other murder cases and the pending one. The defendant then moved the court to quash the venire upon the ground that the same regular panel drawn and summoned to try his case had already served one entire week during the then term of said court, and upon the further ground that the court had no authority to continue the regular juries summoned to serve one particular week, over to another week of the same term, unless engaged at the time in the trial of the case which had been submitted to them. The bill of exceptions recites in reference to this motion, that this fact was made to appear to the court, but at the time the case was set over, the "defendant objected and excepted to its being reset, and made no objection to the order of the court requiring the juries to return as a venire to try the case." Thereupon the court overruled the motion to quash the venire and to this ruling the defendant duly excepted.
During the drawing and impaneling of the jury and after C. B Teasley had been drawn and passed upon, but before the drawing of the jury was completed, and before the jury had been impaneled or any of the jurors had been sworn, said Teasley was allowed by the court to go to another part of the court house. Upon these facts the defendant moved the court to discharge the jury, upon the ground that there had been a separation of the jury without his consent. The court overruled the motion, and to this ruling the defendant duly excepted. Upon the same grounds the defendant moved that he be discharged. The court overruled this motion and the defendant duly excepted.
The facts relating to the rulings of the court upon the admission of the statements made by the deceased are sufficiently stated in the opinion.
John W A. Sanford, Jr., for petitioner.
Chas G. Brown, Atty. Gen., for the State.
1. Until one summoned as a juryman to try a cause has been sworn as such, he does not become a juryman to try it. The fact that Teasley, who had been ascertained and accepted by each party as a proper juryman, before he was sworn, and while the preliminary steps were being taken to select and complete a jury, had been allowed by the court to step to...
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