Haisten v. State

• Decision Date: 19 June 1912
• Citation: 59 So. 361,5 Ala.App. 56
• Parties: HAISTEN v. STATE.
• Court: Alabama Court of Appeals

59 So. 361

5 Ala.App. 56

HAISTEN v. STATE.

Court of Appeals of Alabama

June 19, 1912

Appeal from Circuit Court, Dale County; M. Sollie, Judge.

Will Haisten was convicted of murder, and he appeals. Reversed and remanded.

H. L. Martin, of Ozark, for appellant.

R. C Brickell, Atty. Gen., and W. L. Martin, Asst. Atty. Gen., for the State

PELHAM J.

The transcript in this case contains many confused and contradictory statements in its different parts, and it is difficult to arrive at a satisfactory conclusion from an examination of the judgment entry, the various different venires set out in the record, together with the orders in connection with them, and the statements contained in the bill of exceptions in connection with the numerous motions made to quash different venires, just what really did in fact take place in drawing and summoning the jury and serving copies of the jury lists. The defendant was charged with murder in the first degree, and a special venire was necessary. The judgment of the court shows only one order made for a special venire in the trial of the case to consist of 58 names, while the bill of exceptions shows that it was admitted as part of the proof, on one of the motions made to quash one of the venires, that an order had been made by the court requiring 40 names to be drawn as special jurors in the trial of the case, and that after these 40 names had been drawn and a list served on the defendant containing these names it was discovered that a mistake had been made in ordering 40 names to complete the number (100) fixed by the court to constitute the jury, as 18 of the regular jurors drawn and summoned for the week of the trial had been selected and placed on a grand jury. After the discovery of this mistake at about 8 o'clock in the evening of the same day, the court against the objection of the defendant, changed the first order and made an order requiring 58 names to be drawn as special jurors.

These matters contradicting the judgment entry to the effect that but one order was made requiring 58 names to be drawn cannot be looked to for the purpose of showing reversible error for, when the statements contained in the bill of exceptions conflict with the judgment entry shown in the record, the recitals of the judgment of the court will control and prevail over contradictory statements in the bill of exceptions. Spraggins v. State, 139 Ala. 93, 35 So. 1000; Butler & Stevens v. Savannah Guano Co., 122 Ala. 326, 25 So. 241.

This rule of construing and giving effect to conflicting statements shown by the transcript will dispose of some of the appellant's preliminary motions directed against the venires, as the judgment entry is regular and shows a strict compliance with the law in ordering and drawing the regular and special venire. Seasonable objection was made by the defendant, however, because of the failure to serve a copy of the indictment and jury lists as provided by law, and the judgment entry is silent on that subject. It shows that the special jury was ordered and drawn on the 19th day of February, 1912, and that a list of the jurors together with a copy of the indictment was at that time ordered forthwith served on the defendant. The trial of the defendant was set for the 21st day of February. The return of the sheriff showing service of a copy of the indictment and a list of the jurors shows that they were not served on the defendant until the day his case was set for trial. We gather from the proof made on the defendant's motion to quash on account of the failure to serve the copy of the indictment and list of jurors as provided by law that the defendant was required to enter upon his trial immediately, or in a very short time, after the service on him. Section 32 of the jury law (Acts 1909, p. 305) provides that, whenever any person stands indicted for a capital felony, a list of the jurors and a copy of the indictment must be "forthwith" served on the defendant by the sheriff, "and the defendant shall not be entitled to any other or further notice of the jurors summoned or drawn for his trial nor of the charge or indictment upon which he is to be tried." Acts 1909, p. 319. The provisions of the statutes requiring the service of a copy of the indictment and jury list in capital felonies are mandatory, and a failure to comply with such statutes strictly is fatal error, for the defendant is entitled as a matter of right to the protection afforded by them. Welch v. State, 1 Ala. App. 144, 56 So. 11; State v. McLendon, 1 Stew. 195; Parsons v. State, 22 Ala. 50; Morgan v. State, 48 Ala. 65; Bain v. State, 70 Ala. 4; Brown v. State, 128 Ala. 12, 29 So. 200; Jackson v. State, 55 So. 118.

The manifest object and purpose of the statute is to afford the defendant a reasonable opportunity before being put upon his trial and required to proceed with it to examine the jury lists and copy of the charge against him and prepare for trial. The present statute requires the service to be made " forthwith. " The special jury was drawn and the order made to serve the defendant "forthwith," as shown by the judgment entry on February 19th, but the service was not made as shown by the return of the sheriff until the second day after the order was made, and that too on the same day the case was set for trial, and the defendant was required to proceed with the trial almost immediately after the service was made upon him. Counsel for appellant contends that section 7840 of the Code requiring service "at least one entire day before the day set for his trial" is still in force and effect, and that the jury law (Acts 1909, p. 305 et seq.) does not repeal the section of the Code making such a requirement as to service. We discussed this question generally in Welch v. State, 1 Ala. App. 144, 56 So. 11, but did not consider directly whether section 7840 of the Code was repealed by the present jury law. What we said in that case will be seen to have had reference to a defendant on bond who was evading service by secreting himself. In Welch's Case, supra, we held that the defendant, even though evading service, should be given "a reasonable time to examine the jury lists and copy of the charge...